Cases and authorities

EQUITY [76]- Remedies- Rectification- Vendor's solicitor failed to insert date for completion- The contract was intended to be adjusted in light of an election by the purchaser to undertake subdivision work- Contract was not so adjusted- Neither vendor nor purchaser, nor their lawyers, read the contract before signing it- Whether there was an operative mistake- Circumstances in which a court will rectify an instrument- On facts insufficient evidence that purchaser made any mistake- Vendor's mistake was in signing off on the contract without adjusting it- Not a case of an agreement which was mistranscribed- How far vendor's negligence a discretionary defence.

PRACTICE AND PROCEDURE - form of orders to give effect to judgment

Professional Negligence - Alleged medical negligence - Notice of motion to seek separate (and early) question of liability - plaintiff suffering from cerebral palsy - alleged cause of injuries by hypoxic-ischaemic brain damage during mother's confinement in Hospital.

PRACTICE AND PROCEDURE - application to further amend summons - whether s 51AF of the Trade Practices Act applies - "Financial Service" as defined in Div 2 Pt 2 Australian Securities and Investments Commission Act 2001 - costs

Damages - Quantum - Damages for loss of opportunity - Presumption against wrongdoer - Compensation to be assessed in a robust manner, relying on the presumption against wrongdoers, the onus of proof, and resolving doubtful questions against the party whose actions have made an accurate determination problematic - Contract - Questions of construction

INTERLOCUTORY INJUNCTIONS - alleged breach of non-competition clause in shareholders' agreement - whether interlocutory injunctions previously granted should be continued or discharged - question on cross-claim as to validity of extraordinary general meeting and appointment of directors - whether cross-claimants are entitled to summary judgment - whether estoppel by deed arises - costs

JURISDICTION - practice and procedure - Supreme Court - judgment given in Federal Court of Australia in invalid exercise of State Jurisdiction pre Wakim - plaintiff seeks declaration that Federal Court judgment is ineffective judgment under Federal Courts (State Jurisdiction) Act 1999 and consequent orders for enforcement of rights - whether Federal Court judgment ineffective - whether jurisdiction purported to be exercised by Federal Court was under cross-vesting legislation or corporations legislation - no question of accrued jurisdiction - whether Commonwealth Acts authorizing Federal Court to exercise jurisdiction purported to be conferred bear upon question of whether judgment ineffective.

WILLS [230]- Construction- Testatrix granted plaintiff permission to occupy- Whether a life-estate interest in the property- Mere right of residence is not an estate- Failure to perform the conditions attached to right- Trustee validly terminated plaintiff's right to occupy- Plaintiff was granted a joint right of residence with her sister, thus both of them required to be a party to the suit for it to succeed- Facts supported finding that plaintiff had ceased to occupy the premises.

Building and construction - progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 - determination made by adjudicator - Administrative law - whether, and if so to what extent, judicial review of adjudications made pursuant to the Building and Construction Industry Security of Payment Act 1999 is available - scope of relief available in the nature of a writ of certiorari - grounds upon which judicial review is available

Practice and procedure - Limitation of actions - Commencement of proceedings purporting to be brought under Part 8 rule 13 - Proceedings irregularly so commenced - Status of persons claimed to be represented - Whether persons claimed to be represented are already "parties" to the proceedings within the meaning of the rules - Application pursuant to Part 8 rule 8 (1) (b) to add such persons as parties - Application also made pursuant to Part 8 rule (2) (b) - Application also made pursuant to the inherent jurisdiction of the Court - Application also made pursuant to section 81 of the Supreme Court Act - Part 8 rule 11 (3) (b) providing inter alia that where in any proceedings a party is added, the date of commencement of the proceedings so far as concerns him shall be the date on which the amendment adding him as a party is made - Contention that the references in Part 8 rule 11 (3) (b) to "a party [being] added" does not encompass a circumstance where a party is already represented, albeit irregularly, by proceedings commenced under Part 8 Rule 13

Corporations Law. Application to set aside a statutory demand. Allegations of defects in the demand and affidavit in support not sufficient to set aside demand. Abuse of process in respect of other court proceedings between related parties. Demand set aside on basis of genuine dispute as to identity of creditor.

PROCEDURE - Supreme Court procedure - reference under Part 72 rule 13 - whether orders previously made were orders under Part 72 rule 13 - whether reports of accountant are capable of adoption by court - whether court may subject parties to regime in accountant's reports in exercise of inherent jurisdiction - PARTNERSHIP - dissolution - application by one partner for order that others account - whether grounds for account on wilful default bases shown - whether the particular order to account should be made

Criminal law - appeal - sentence - armed robbery - aggravation - asserted duress - psychiatric problems - credibility - prospects of rehabilitation - onerous circumstances of confinement - sentence asserted to be manifestly excessive - application of guideline in Henry - asserted failure to apply decisions referring to mental illness - sentence appropriate.

EVIDENCE - tendency and coincidence - criminal trial - admissibility - multiple counts on indictment - where trial judge admitted evidence of each offence as tendency and coincidence evidence in relation to all other offences - where trial judge applied Evidence Act 1995 s 101 in terms - whether test in Pfennig v The Queen applicable - whether tendency and coincidence evidence admissible.

Criminal law - possession of drug in quantity greater than traffickable quantity - issue at trial whether drug in appellant's possession otherwise than for supply - grounds of appeal not taken at trial - whether leave to rely upon grounds should be granted.

Criminal law - sentencing - malicious infliction of grievous bodily harm.

Evidence - exculpatory out-of-court statement of absent co-offender - whether admissible

LAND AND ENVIRONMENT: Continuing use - Enlargement - Intensification of use of land - 'Output' Test - Whether increase in noise constitutes 'intensification'.

PROCEDURE - interlocutory orders - application by defendant for interlocutory order compelling plaintiff to act - whether claim maintainable in absence of cross-claim - CHURCHES AND RELIGIOUS ASSOCIATIONS - claim by owner of land subject to charitable trust for religious purposes of particular church to compel bishop to authorise installation of ecclesiastical article and to appoint priest - whether claim justiciable on basis of spiritual obligations of bishop to flock - whether claim justiciable on basis of duty of church hierarchy to uphold charitable trust - whether bishop amenable to control of court as in case of advowson

Commercial Arbitration - Leave to appeal and alleged technical misconduct.

EQUITY - estoppel - acquisition by estoppel - father and son cause company to be represented as owner of property purchased by them with funds provided by father and mother - company conducts itself as owner and acknowledges debt to father and mother - father and son estopped from denying company's ownership

CORPORATIONS - directions to liquidator in voluntary winding up - directions as to recognition of claims affected by statutory illegality - CONTRACTS - illegality - contract to pay sums in satisfaction of inducement to participate in illegal marketing schemes - whether such sums recoverable - sums paid to gain access to participation in sum schemes - whether such sums recoverable

CORPORATIONS - winding up - compromise or arrangement with certain creditors - attempt to implement scheme affecting all creditors by deed between liquidator and some creditors - deed purports to give one party creditor benefits comparatively more favourable than benefits of non-party creditors - deed containing provisions apparently unworkable and of uncertain operation - direction that liquidator justified in giving effect to deed not made

PRACTICE & PROCEDURE - costs - interest on costs - whether, in the Equity Division, an order under s 95(4) should be made as of course when claimant shows payment to solicitor

Appeal decision of CTTT - contract - frustration

Agency - whether agents in breach of duty to principals

On application for discharge of jury - aggravated damages - damages for injury to reputation - action for defamation and false imprisonment

Appeal decision of CTTT - building contract

Rehearing - Arbitrator's sward - Assessment - motor vehicle account

Family Provision - Application by a de facto partner of deceased and a grandchild of deceased - Having regard to the short period of the de facto relationship small provision out of notional estate in favour of the de facto partner - Legacy in favour of grandson - Consideration of special circumstances under s 28 (1) (l) of the Family Provision Act

Criminal law - sentencing - threatening to use an offensive weapon with intent to murder

Criminal Law and Procedure - Particular offence - supplying a prohibited drug - whether intent to supply a prohibited drug is a necessary ingredient where the Crown is alleging an offer to, or an agreement to, supply a prohibited drug.

CRIMINAL ASSETS RECOVERY - FOCUS UPON "GROSS RECEIPTS" NOT NOTIONAL PROFIT - ASSESSMENT

Appeal decision of Local Court Magistrate - suspension of driving licence

CORPORATIONS - winding up - principle in Ex parte James - In re Condon (1874) LR 9 Ch App 609 - circumstances of application - circumstances when appropriate to direct liquidator not to collect corporate asset - how principle in Ex parte James fits with liquidator's duty under Corporations Act 2001 - ESTOPPEL - whether liquidator estopped from collecting corporate assets - appropriate remedy to meet "minimum equity" test - TRUSTS - resulting and constructive trusts - factual decision about whether purchase price of asset in name of Company "A" controlled by directors of Company "B" had been provided by Company "B"

INFANTS and CHILDREN - property - children aged 6 and 3 were registered proprietors of land in Strata plans - parents appointed trustees under Conveyancing Act 1919 s.151C - Court declined to confer wide powers (including sale) usually found in family Discretionary Trusts, and declined to act under Conveyancing and Law of Property Act 1898.

Debt owing on credit cards - late payment interest claimed to be a penalty - liability of guarantor

EASEMENT - right of carriage way - creation - Torrens title land - whether words of limitation were required - short form reservation under s 181A of the Conveyancing Act 1919 - whether context negatived use of short form - effect of s 3(b) of the Real Property Act 1900 - meaning of "appurtenant" - indefeasibility of title to easement - effect of s 88 of Conveyancing Act - obstruction by erection of gates and other structures - test for relief.

CRIMINAL LAW - sentence - attempt to strangle victim with intent to commit aggravated indecent assault - aggravated sexual intercourse without consent - weight to be given to circumstances of custody - relevance of psychiatric condition - existence of special circumstances - where non-parole period slightly higher than statutory proportion - whether error in partial accumulation of sentences - whether sentence manifestly excessive.

Criminal law - sentence - appeal - absence of express mention by sentencing judge of guilty plea - expression of intention by sentencing judge to pass a low sentence - whether plea disregarded - what is appropriate range - sentence within an appropriate range.

CRIMINAL LAW - murder - malicious wounding with intent to inflict grievous bodily harm - direction to jury - burden and standard of proof - definition of "beyond reasonable doubt" - where jury sought clarification on meaning of standard - where trial judge repeated earlier direction - whether trial judge erred by failing to address jury request

Appeal - Leave to appeal - Sentence - Murder - Conspiracy to murder - Contract killing - No error if words of s 61 of Crimes (Sentencing Procedure) Act 1999 not used - Plea of guilty - discount - Notion of percentage discount on an indeterminate sentence not meaningful - Reduction of indeterminate sentence to sentence for term of years - Assistance to authorities - discount - Motive not necessary factor for discount for assistance - Effect of verbal formulae "take into account" and "must consider" - Double dipping

Criminal Appeal - sentence - offence of ongoing supply of drugs - rejection of applicant's account of motivation - questions of credibility for primary judge.

Criminal law - Appeal against sentence - Supply heroin - Early plea of guilty - Connection between offences - Concurrent rather than cumulative sentences - Parity - Special circumstances - Judicial Commission statistics

CRIMINAL LAW - sentencing - murder - finding that prisoner would present significant risk of re-offending - whether finding must be made on criminal onus

Appeal - DAMAGES - negligence - personal injury - evidence - causation - injury received in motor vehicle accident - whether further injury sustained in subsequent motor vehicle accident - apportionment of damages - liability of respondent - whether trial Judge's conclusion to discount damages by reason of subsequent accident was correct mitigation of damages - whether finding by trial Judge of a failure to mitigate was correct - costs order

NEGLIGENCE - accident in dodgem car - negligence of operator not established - no question of principle - INSURANCE - son claiming benefits under father's policy - right not established - no question of principle

Family Provision - Application by a son and daughter in respect of an estate comprising of a country property left to two other sons - Legacies awarded - No matter of principle

CORPORATIONS - winding up - company seeks injunction to restrain advertising of winding up application - dispute as to debt in unsatisfied statutory demand - no application to set aside statutory demand - alleged abuse of process - company insolvent - injunction not warranted