Cases and authorities

Criminal Law - sentence - murder - young victim - young offender - strong prospects for rehabilitation - contrition - plea of guilty - head sentence as punishment imposed - special circumstances - naming of offender - discretion as to where the sentence should be served - - Manslaughter - young victim - young offender - good prospects for rehabilitation - contrition - plea of guilty - objective seriousness - mitigation - special circumstances -

INSURANCE - whether plaintiff was an Insured Person under the policy - whether he could maintain a claim directly against the second defendant - length and extent of plaintiff's disability and whether it fell within the terms of the policy

EVIDENCE - legal professional privilege - implied waiver of privilege - draft affidavit prepared by plaintiff's solicitor after discussion with witness - whether evidence by witness about preparation of draft amounted to waiver of plaintiff's privilege with respect to draft

CONTRACT - transfer of shares upon termination of joint venture agreement - whether "fair value" of shares to be determined by reference only to second defendant's net tangible assets or whether other factors may also be considered - whether cl 5.02(b) of the joint venture agreement is void for uncertainty - severability of that clause - effect on cl 5.03 if cl 5.02(b) is void but not severable

CORPORATIONS - winding up - appointment of provisional liquidator - contributory's application for winding up on just and equitable ground, when no allegation of insolvency - intention to oppose making of winding up order on discretionary grounds - no objective basis for concern about threat to assets - undertakings proffered by ongoing directors

ADMINISTRATIVE LAW - whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 is open to judicial review and upon what grounds - whether there were errors of law, jurisdictional errors or denial of natural justice - whether discretionary reasons for refusal of relief

EVIDENCE - relevance - whether evidence relevant against defendant A but not defendant B should be admitted only against defendant A - evidence "admissible in the proceeding"

Sucession - Family Provision - Plaintiffs are three adult children and mother of first testator and are three adult stepchildren and mother-in-law of second testator - Sole asset of the two testators was a house property owned by them as joint tenants - Interest of first testator passed by survivorship to second testator - Second testator by will gave that property to Defendant - Defendant sold that property and dissipated proceeds of sale - Financial and material circumstances of each Plaintiff - Competing claim of Defendant (whose affairs are now under the control of the Protective Commissioner) - Claim against estate of first testator an exercise in futility - Factors which warrant the making of the application against the estate of the second testator - Whether assets of Defendant should be designated notional estate of second testator.

SALE OF BUSINESS - time for completion was specified after which each party had express power to terminate - held, time was of the essence - contractual date for completion was 30 September, neither party could or did tender performance, inconclusive communications about price adjustments after due diligence continued until 17 October when vendor terminated - vendor entered into another sale agreement with second defendant - purchaser sought specific performance and interlocutory injunction based on waiver estoppel implied representation etc. arising from vendor having continued communications with purchaser while entitled to terminate - no express reference to whether or not right to terminate would be exercised - on the facts, purchaser had poor prospects of success - interlocutory injunction refused.

PROCEDURE - Supreme Court Procedure - Amendment of pleadings - Review of Registrar's decisions - Whether an allegation of abuse of process not amounting to a plea in tort of collateral abuse of process is so futile that the amendment should be refused - Whether an allegation of abuse of process as unfair conduct is sufficient to invoke the Industrial Relations Act 1996, s 106

ENVIRONMENT & PLANNING - whether contributions plan valid - whether condition of monetary contributin imposed by local council on particular development valid - meaning of "will or is likely to require" in s94(1) EPAA - Newbury test - ND

Slip Rule - sought to be invoked to delete sections of Judgment

Defamation - false imprisonment - trial by jury - Defamation Act 1974 s7A - Supreme Court Act former s88

negligence - breach of statutory duties - causation

Termination of tenancy without notice - meaning of "injury" - application of Briginshaw test - threshold requirement and exercise of discretion to make an order.

Appeal from interim decision of Tribunal - question of admissibility of evidence - leave required - appeal from adjudicator to Tribunal - nature of that appeal - the admissibility of new evidence and leave considerations.

Family Provision - Widower left a life estate in a half share of matrimonial home - Small estate - Widower given absolute interest

Evidence - legal professional privilege - whether communications with a prospective expert witness are privileged

Defamation - action dismissed as frivolous

Separate questions - Part 31 rule 6 Supreme Court Rules - precise wording of separate questions proposed by plaintiff in short minutes of order - defendant proposes orders should not be made - counsel for defendant applies for leave from the bar table to amend current pleading so as to allege the settlement reached was not a reasonable settlement - proposed amendment would have required a differently worded separate question to that already answered - issue not raised until after hearing and following determination of separate questions - importance of precision in wording of separate questions for determination - Reference by the Court to a referee - referral on hold until determination of separate questions - order sought by plaintiff for remaining question to be referred to a referee pursuant to Part 72 rule 2 for enquiry and report - defendant submitted referral not appropriate pending application for leave to appeal and the appeal - reference to treat with both alternative approaches to the question - plaintiff in the present circumstances should not be prevented from having benefit of reference - Practice and procedure - Commercial List - List established for the purpose of giving the commercial community, as swift as it practicable in the circumstances, a result in a given set of proceedings

Proceeds of crime - restraining order made ex parte - part of the evidence inaccurate - whether order should be dissolved - effect of s.10 - relationship to common law or equity practice - whether order should be dissolved where part only of the material put before the judge is accurate where that part is sufficient.

Family Provision - Application by a daughter who received half of her mother's house - Other half left to deceased's sister in law - Daughter awarded whole house subject to payment of small legacy to sister in law

Damages (Infants and Persons of Unsound Mind) Act 1929 (NSW) - Sanction of Settlement

EASEMENTS - right to use cattle yards - defendant removed cattle crush and other equipment forming part of cattle yards - mandatory order to restore - numerous issues on alleged obstructions of R.O.W. Consideration of right of dominant owner to build road works on R.O.W. Consideration of effect of positive covenant to pay for repairs on subsequent owners of servient land.

Proceeds of crime - property excluded from restraining order - application for costs by successful, convicted applicant - only right to costs under the Act - convicted applicant excluded by the statute from any right to costs.

Review decision of Registrar - security for costs

CRIMINAL LAW - murder - appeal against conviction - whether failure of trial judge to exclude evidence or issue a warning to the jury in relation thereto resulted in a miscarriage of justice - EVIDENCE - whether evidence should have been excluded under s137 - whether trial judge should have issued a s165 or Longman warning in relation to evidence due to medical condition of witness - whether failure of trial judge to do so resulted in a miscarriage of justice - where defence counsel at trial had not sought exclusion or warning - PRACTICE - whether direction by trial judge to jury gave impression that he thought the accused was guilty - whether an error in directions resulted in the jury being misdirected - ND

Criminal law - appeal - new evidence - whether cogent

Motor accident - liability not in issue - damages - existing back condition, psychiatric and other difficulties exacerbated - whether allowance made for existing condition - legal onus of proof reversed - tortfeasor only responsible for damage caused

Criminal Law and Procedure - Practice and Procedure - Course of evidence - Crown witness to rebut defence under s 23A of Crimes Act - direction sought under s151(3) of the Criminal Procedure Act - relevant considerations.

Costs - General Rule - costs follow the event - whether there should be a departure from the rule - whether costs should be on an indemnity basis - extent of the order for costs. Injunctions and undertakings - Injunctions for particular purposes - whether they should remain after action is dismissed - Payment into court - whether it should be paid out and to whom.

Criminal Law - sentencing - parity - relevant principles

Criminal law - sentencing - manslaughter - malicious infliction of grievous bodily harm with intent - murder

Proceeds of crime - intermediary sells drugs to undercover policemen - passes funds to supplier - whether funds "derived" by intermediary - whether acting as "agent" within s28(4)(b) Criminal Assets Recovery Act 1990

CORPORATIONS - winding up - statutory demand - securing or compounding to the reasonable satisfaction of the creditor - CORPORATIONS - winding up - statutory demand - "other reason why the demand should be set aside" - winding up proceedings used as lever for improving creditor's position concerning payment of a disputed debt not itself the subject of the statutory demand

CRIMINAL LAW - application for leave to appeal - severity of sentence - assault on police officer - whether accumulation of sentences amounts to a special circumstance in fixing the non-parole period

INSOLVENCY - UNFAIR PREFERENCE - UNCOMMERCIAL TRANSACTION - PAYMENTS IN REDUCTION OF TAX LIABILITY - Whether company insolvent at time of payments - Whether transactions constituted unfair preferences - Whether transactions constituted uncommercial transactions HELD: Company insolvent at time of payments - payments constituted unfair preferences and uncommercial transactions - Plaintiffs entitled to order sought pursuant to s588FF(1)(a) - Defendant to pay Plaintiffs interest and costs - CLAIM FOR INDEMNITY FROM DIRECTOR DEFENCES UNDER s588FGB(3),(4),(6) - Whether Respondent liable to indemnify Defendant in respect of payments made when company was insolvent - Defences of expectation of solvency, reliance on other person, and all steps taken - HELD: Defendant entitled to declaration and order that the Respondent is liable to indemnify the Defendant pursuant to 588FGA(2) - Respondent to pay Defendant interest and costs.

PROCEDURE - miscellaneous procedural matters - transfer of proceedings to Family Court - CORPORATIONS - winding up - challenge to validity of appointment of liquidator and to rejection of proof of debt - liquidator purportedly appointed pursuant to order of Family Court and with Registrar of Family Court carrying out some steps in appointment - winding up of companies part of larger property dispute in Family Court - transfer of proceedings to Family Court

Notice of motion seeking orders concerning merchant facility agreement - Principles governing discretion to grant interlocutory relief - Principles applicable to the grant of mandatory injunctions - Banker and customer - merchant facility agreement - credit card merchant facility - facility to process internet business - overseas internet orders - Merchant Agreement terminated - business overdraft facility terminated by bank

PRACTICE & PROCEDURE - consolidation of proceedings - when appropriate JURISDICTION OF COURTS - cross-vesting of proceeding from one State Supreme Court to another - federal matter with accrued jurisdiction - whether Court is required to apply law of transferring State

Corporation Law - Application to set aside statutory demand - Demand set aside - No matter of principle

Defamation - s7A trial - counsel's addresses - issues relating to "guilt/suspicion" - publisher's intention and adoption - application for discharge of jury

Murder - plea of guilty - life sentence - when available - determinate sentence - significance of adverse prior record - offenders' discussion of crime ghoulish, evidencing viciousness and callousness - lack of prospects of rehabilitation - whether no non-parole period should be fixed.

CRIMINAL LAW - Appeal against conviction dismissed - Admissibility of expert voice similarity evidence - Admissiblity of visual identification evidence - Warnings to the jury - Bias of expert evidence does not render evidence inadmissible - Crown appeal against sentence upheld - Set aside trial judge's sentence periods and in lieu thereof appellant sentenced to 15 years imprisonment with a non-parole period of 11 years 3 months.

SUCCESSION - FAMILY PROVISION - Large estate left substantially to daughters of first marriage - Order that second wife have ownership of matrimonial home and $600,000 - Whether appealable error.

Appeal decision of Local Court Magistrate - Information - phrase to "take and prosecute" proceedings

Insurance - Proper construction of directors and officers indemnity policy - Three sets of proceedings against corporate entity and individual officers - Proceedings settled - Policy definition of "Loss" as including the amount determined by settlement which an insured person is legally liable to pay in respect of a claim - Deed of Settlement providing that "corporate defendant on behalf of itself and each of the other defendants will pay [the plaintiffs]" - Whether on the proper construction of clause 2.1 of the policy, the deed of settlement properly construed resulted in the insurer being liable under the policy to indemnify the corporate entity - Principles of construction of policy and of commercial agreement - Joint and several liability - Insurer electing not to exercise its entitlement to take over and conduct the defence or settlement of the claim - Insurer claims unconscionable conduct by reason of conversations between the solicitors concerning the proposed terms of the deed of settlement - Defence costs - Where legal and experts fees, costs, charges and expenses have been incurred in defending, investigating, monitoring or setting a claim, whether insurer is relieved of its obligation to pay those costs simply because a corporate entity receives a benefit from those costs being incurred - Apportionment of defence costs - Claims condition providing that in the event that that both an insured person and others (including the insured entity) are parties to the proceedings, then the insured and the insurer will agree on a fair and proper allocation of damages, interest, claimants costs and expenses and defence costs between loss covered by the policy and loss not covered by the policy held to be unenforceable as an agreement to agree and/or void for uncertainty

SETTLEMENT - whether "costs" of a District Court proceeding included, in particular Terms of Settlement, a costs order previously made in the Court of Appeal - effect of incorrect expression "counsels' fees" - effect of context