Cases and authorities

NEGLIGENCE - Motor vehicle accident - liability of negligent driver for damages for injury to other driver - failure to meet threshold for recovery under legislation - relative contribution of accident to appellant's pre-existing state of health - correct test in case of admitted negligence causing incapacity - out-of-pocket expenses and the Fox v Wood component previously agreed. EVIDENCE - were specialist doctors aware of pre-existing problems - no cross-examination of treating doctor or expert witnesses - new trial ordered.

PROCEDURE - Supreme Court Procedure - Mortgagee's proceedings for possession successful - writ of possession challenged by associated parties alleging occupancy of the subject lands and no service of the proceedigns under the Supreme Court Rules 1970, Pt 7 r 8(1) - Whether the Courts should dispense with compliance under Pt 1 r 12 - whether injunction should be granted

Appeal - lack of consideration - who were the parties to an alleged contract - errors of law.

CORPORATIONS - winding up - application for order removing liquidator or directing inquiry into his conduct - alleged partisanship of liquidator - alleged failure to cooperate with major creditor - alleged lack of independent decision making - whether examination summonses should be set aside or confined

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - Caveats against Dealings - Equitable mortgages claimed by plaintiff - Whether plaintiff as undisclosed principal could sue on provision in gaurantee to give a legal mortgage - Whether evidence necessary of approval of guarantee form by principal - Whether description in caveat as equitable mortgagee was accurate - Whether undisclosed principal may enforce proprietary rights - Whether provision appointing attorney to perfect legal mortgage ousts entitlement to sue for legal mortgage

Torts - personal injuries claim against employer - accidents in mine - additional claim for Raynaud's phenomenon caused by use of vibrating drills - effect of safety bulletins of Western Australia Mines Department as statements of responsible professional opinion about mining practices - defence that safer method would have been uneconomic in marginal operation - principles - what was involved in statutory duty of training as regards safety precautions - effect on damages of pt 5 of Workers Compensation Act 1987 NSW where separate accidents had occurred

TAXES AND DUTIES - stamp duty - transfer of land - whether transfer expressed to be for consideration of "nil" is "made for nominal consideration" - TAXES AND DUTIES - stamp duty - unsuccessful attempt to tax underlying transaction - subsequent levying of duty on instrument - whether revenue estopped - STATUTES - repeal - implied repeal - whether existing provision allowing demand for further money where duty paid considered deficient was impliedly repealed by later provisions permitting amendment of assessment of duty (1992) or reassessment of duty (1998) - if no implied repeal, whether existing provision became subject to limitations in later provisions - STATUTES - operation and effect of statutes - provision creating power to delegate - act of delegate after such provision "omitted" from statute - whether delegation extinguished by omission - whether delegation saved as act, matter or thing before repeal - COURTS AND JUDGES - stare decisis - determining ratio decidendi where three judgments given - EQUITY - equitable estates and interests - interest under sub-trust - whether interests merge - whether trustee of sub-trust is bare trustee - whether trustee of head trust holders on trust for beneficiary of sub-trust - need for writing under Statute of Frauds provisions - estoppel - part performance

TRUSTS AND TRUSTEES - constructive trust - properties acquired by marriage partners in separate names - all purchase moneys and mortgage payments sourced from wife's business activities - husband's relatively small contribution to domestic expenses - whether pooling of interests and joint endeavour - whether husband entitled to constructive trust on basis of departure from common intention or other unconscionability - TRUSTS AND TRUSTEES - purchase of property in name of wife alone - whether husband provided part of purchase money - whether presumption of advancement rebutted - MORTGAGES AND CHARGES - prior determination that equitable charge created by loan agreement and caveat - no ground for questioning earlier decision - prior determination cannot be impugned in these proceedings

EQUITY - equitable estoppel - son claims interest in farming land through improvements made in reliance on father's statement - ingredients of estoppel - reliance and detriment

EQUITY - secret trusts - fully secret trust of company shares and investments in companies - relevance of "fraud" - standard of proof - obligation to be satisfied by will - whether certainty of trust property

WILLS - construction - condition that residuary beneficiary "has attended Alcoholics Anonymous and complied with their requirements concerning sobriety for a period of not less than two (2) years" - condition precedent or subsequent - test of certainty for condition precedent

PROCEDURE - Supreme Court procedure - interpleader - rationale - when appropriate to be granted

Criminal Practice & Procedure - Sentence - Murder - Spontaneous act in a domestic setting

CORPORATIONS LAW - Insolvency - Voidable preference payments - time limit for application to recover - whether time may be extended under Corporations Act 2001 (Cth), s 1322(4)(d) - CORPORATIONS LAW - Insolvency - Voidable preference payments - power to extend time within which to apply for recovery - whether extension may be granted in general terms - Corporations Act 2001 (Cth), s 588FF(3) - CORPORATIONS LAW - Insolvency - Voidable preference payments - power to extend time within which to apply for recovery - appropriate test for exercise of discretion to extend time - PROCEDURAL FAIRNESS - Ex parte orders - when permitted - right of affected party to have orders set aside - PRACTICE AND PROCEDURE - Joinder of parties - date of effect of joinder of defendant - whether provision of Corporations Act 2001 (Cth) governing time limit for commencing proceedings directs attention to commencement against a particular party.

appeal against conviction - application to appeal against severity of sentence - aggravated robbery - evidence adduced from witness

Costs - garnishment proceedings - costs in discretion of court - practice of making no order for costs in favour of or against judgment debtor - costs - garnishment proceedings - application for payment of funds in deceased estate account attached by garnishment notice - application successfully opposed by trustees of estate - whether trustees should be awarded costs.

PROCEDURE - Costs - Whether costs should be awarded on an indemnity basis - Cross claim with no prospect of success adding little to hearing time - Summons in part seeking order for costs before the expiration of 30 days from rendering bills of costs contrary to the Legal Profession Act 1987, s 192 - Plainitff unsuccessful on applications for summary termination of proceedings

WILLS - testamentary gift of estate including testator's home to three children in equal shares, upon trust for sale with postponement of the sale until one of the beneficiaries 'shall cease to live therein' - defendant ceased to live in testator's home after alleged threats by plaintiff - whether postponement of trust for sale thereby ended - whether defendant's cross-claim for damages or equitable compensation for duress or unconscionable conduct entitled him to reduce plaintiff's distribution out of proceeds of sale of testator's home

CONTRACTS [2]- Tender- Whether process contract- Whether obligation to treat all tenderers equally. CONVEYANCING [158]- Torrens system- Easements- Whether prescriptive easement may exist if no change in registered proprietor for whole period. REAL PROPERTY [413]- Easements- Right of way- 20 years use- Torrens system land- Land owned by Crown- Although user established, no easement existed.

ADMINISTRATIVE LAW - Prerogative Writs and Orders - Consumer, Trader & Tenancy Tribunal - Order for termination of tenancy made in absence of plaintiff - Rehearing application refused - Injunction against landlord on Court's own motion - Submitting appearance by Tribunal - Whether order setting aside determination should be made - Undertaking on behalf of landlord not to evict plaintiff pending a rehearing by the Tribunal

CORPORATIONS - Voluntary administration - Extension of time to execute deed of company arrangement - Payment of fund to administrator a condition precedent to execution - Whether extension for 30 days should be granted - Complicated transactions with two separate groups of investors - Views of creditors abstaining and voting against deed - Possibility of losing overseas exports accreditations - Whether further extension can be granted outside the statutory 21 day period

CORPORATIONS - winding up - statutory demand - company seeks order setting aside on ground of genuine dispute as to existence of debt - claim asserted by defendant in correspondence and in submissioins is claim for unliquidated damages not debt - no basis for maintaining statutory demand - indemnity costs appropriate

Practice & Procedure - application for security for costs as against impecunious incorporated plaintiffs, where natural persons also joined as plaintiffs

COSTS - contraventions found against second and fourth defendants - plaintiffs failed to establish that defendants' caused them loss - whether plaintiffs should be ordered to pay second and fourth defendants' costs - whether second and fourth defendants, though successful, should be ordered to pay plaintiffs' costs - apportionment of costs between defendants - whether plaintiffs should be ordered to pay cross-claimants' costs

ADMINISTRATIVE LAW - Prerogative Writs and Orders - Consumer, Trader & Tenancy Tribunal - Order for termination of tenancy in absence of plaintiff - Rehearing application refused - Exception to privative clause for denial of procedural fairness - Whether order nisi in the nature of a prerogative writ should be granted

LIMITATION OF ACTIONS - Extension of time - Whether trial judge was entitled to find that the opponent had a 'real cause to advance' that his injury was caused by accident - Whether it is just and reasonable to extend the limitation period under s 60C of the Limitation Act 1969 - Reasons for delay - Whether delay caused actual prejudice to the claimant. ND

Collapse of Ansett Group of Companies - Test cases sought to be brought directly against alleged former directors of Ansett Australia Limited or its wholly-owned subsidiary Traveland Pty Ltd ["Ansett Corporate Travel Agents"] - Travel Compensation Scheme made in accordance with Travel Agents Act 1986 in a number of States and in the Australian Capital Territory - Cooperative scheme for the regulation of travel agents and to provide fund to protect consumers of services offered by travel agents - Provisions by States and the ACT for Travel Compensation Fund to be subrogated to the rights of claimants upon specified payments being made to claimants under the Compensation Scheme - 12,000 claimants receiving payments of approximately $11 million - Legislation further providing that where rights so conferred on Travel Compensation Fund are exercisable against a body corporate travel agent, those rights are enforceable jointly against the body corporate and its directors at the time of the act or omission - Pleading and particulars - Test case proceedings sought to be brought by Travel Compensation Fund directly against alleged directors of Ansett Corporate Travel Agents without joining the Corporate Travel Agents as defendants and without joining the claimants as parties - Practice and procedure - Application for leave to amend summons - Principles - Utility - Whether causes of action adequately pleaded - Suggested improper constitution of both sides of the record - Parties - Parties who ought to have been joined - Parties whose joinder is necessary to ensure that all matters in dispute may be effectively and completely determined and adjudicated upon - Rules of natural justice - Whether the rights of a non party against or liabilities to any party to the action in respect of the subject matter of the action may be directly affected by any order which may be made - Difficulties and undesirability of attempting exhaustive formulation of principle as to when joinder is "necessary" - Part 31 power in the court to make orders for decision of questions separately from any other questions in the proceedings - Principles - Overriding Purpose Rule - Case management of proceedings - Constitutional Law - Whether inconsistency between State/Territory legislation and Commonwealth legislation within the meaning of section 109 Constitution - Whether direct collision where State and Territory law, if allowed to operate, said to impose an obligation greater than that for which the federal law has provided - Whether provision of State and Territory law would qualify, impair and negate essential legislative scheme of the Commonwealth Trade Practices Act 1974 - Construction of State and Territory legislation - Whether State and Territory legislation properly construed creates new additional set of rights under State and Territory law, incorporating and building on the provisions of the Trade Practices Act - Construction of State and Territory legislation - Principles - Whether Travel Compensation Act inconsistent with Fair Trading Act 1987 - Subrogation rights at general law - Party subrogated regarded as constituting one and the same person to person whom it succeeds - Differences between pursuit of subrogated rights and pursuit of assigned rights

PROCEDURE - Miscellaneous procedural matters - Application to dismiss or strike out cross claim - Cross defendant an architect retained by builder - Cross claimants former owners and developers of unit block - Whether a cause of action against architect for purely economic loss - Amended cross claim conceded to raise triable issue - Whether cross claim should be dismissed or struck out in any event

Proceeds of crime - whether restraining orders granted ex parte should be revoked - applicable principles in relation to proof

VENDOR AND PURCHASER - specific performance

Practice and procedure - Interlocutory issues in trial - whether plaintiff can amend statement of claim - whether plaintiff can tender transcript of broadcast - whether jury should be discharged

Family Provision. Application under Family Provision Act by a daughter who had minimal contact with deceased over last 13 years of the deceased's life. Small estate - legacy granted.

CRIMINAL LAW AND PROCEDURE- sentence appeal - extra-curial punishment - mitigation of sentence - discount in sentence - special circumstances

Trial under s7A of Defamation Act

CONTRACTS [105]- Implied terms- Licence to remove sand- How far activities existing at date of licence impliedly authorised to continue. SUCCESSION [198]- Condition- Gift to M of property subject to him acknowledging obligations under sand mining licence. WORDS & PHRASES- "Acknowledge".

CORPORATIONS - winding up - duplicate statutory demands - whether objectionable as abuse of process

Security for costs - reason for belief as to inability of plaintiff company to pay costs if ordered to do so - consideration of discretionary issues - exercise of discretion.

s 22 Residential Tenancies Act 1987 - head lease for fixed term - sub-lease a periodic tenancy - eviction by police.

COSTS - leave to appeal refused - appeal treated as incompetent - in the interim between the hearing and the determining of costs one of the original judges resigned from the Court of Appeal - s45AA consent given by the parties to the two remaining Judges of Appeal determining the matter - written submissions on costs - respondents challenged the competency of the appeal - letter of offer of 29 July 2002 referred to not claiming costs on the appeal but silent on costs of the application for leave to appeal - letter came too late to justify indemnity costs - competency of appeal challenged outside the time allowed pursuant to Pt 51 r27 SCR - respondent in absence of any order otherwise therefore disentitled to any costs when appeal treated as incompetent whether Court should make an order otherwise ordering - appellants' material for appeal prepared prior to challenge - duplication in need for preparation of material for concurrent application for leave to appeal and appeal.

MISREPRESENTATION - silence - partial statement of the truth - a misrepresentation in context of established course of business - TRADE PRACTICES - misleading and deceptive conduct - silence - incomplete statement of the truth in context of established course of business - misleading and deceptive

CONTRACT - implied negative stipulation - whether supply agreement contained implied negative stipulation qualifying seller's right to call on standby letter of credit - COMMERCIAL LAW - irrevocable standby letter of credit - principle of autonomy and exceptions - exceptions for negative contractual stipulations and unconscionable conduct contrary to Trade Practices Act - scope and application of exceptions - TRADE AND COMMERCE - unconscionable conduct under ss 51AA and 51AC of the Trade Practices Act - whether seller under supply agreement engaged in unconscionable conduct by demanding full payment on letter of credit without allowance for repair costs of defective goods

Plea of guilty to assault occasioning actual bodily harm while in the company of other persons

Extension of time - ss 60G & I - 1964 diving accident - quadraplegic

CRIMINAL LAW - Sentence Appeal - sexual intercourse with a person under the age of 16 years - plea of not guilty - whether sentencing judge gave sufficient weight to delay, rehabilitation, character and subjective material - whether sentence manifestly excessive - whether calculation of sentences offended Pearce v The Queen.

Appellant injured when she fell to the ground from steps which were fixed to the side of a cotton module builder machine.

CORPORATIONS - Management - Deadlock of board of directors - Reserve powers of general meeting - Whether general meeting can authorise commencement of legal proceedings.

application for leave to appeal against severity of sentence - charges of making and using a false instrument - Form 1 offences

SUCCESSION - Wills, Probate and Administration - Construction and effect of testamentary dispositions - Devises of paddocks within a lot in a deposited plan - Whether void for uncertainty - Proviso that devisee remain the registered proprietor of other land - Gift of that land to the testatrix who gifted it back by her will - Whether proviso should be excised - Whether rectification available at common law or limited to the Wills, Probate and Administration Act 1898, s 29A(1) - Whether the costs of subdivision and transfer of the paddocks should be borne by the devisees

CORPORATIONS - director's right of access to books and financial records - whether director seeking to assert statutory right under s 290 can be required to specify the documents he or she requires