Cases and authorities

Trust - whether express trust - whether document intended to be binding between parties - no point of principle.

EQUITY - remedies - interlocutory injunctions - application to continue interim injunction prohibiting publication of report of investigative committee set up by university - validity of report challenged in proceedings - test to be applied in determining applications for interlocutory relief - jurisdiction of court to intervene in affairs of private bodies - whether plaintiff has arguable case - HELD: interim order continued

Striking out of Statement of Claim - attempt to re-litigate in this Court matters finally determined in another jurisdiction - abuse of process and vexatious litigation.

INTEREST [7] - Recoverability of interest - Award of interest as damages - In New South Wales - Other cases - Mortgage without covenant for payment of interest - Whether interest may be awarded as damages where principal not repaid on due date - MORTGAGES [9] - Mortgages and charges generally - The mortgage - Covenants - For payment of interest - When payable - No covenant for interest - Whether interest may be awarded as damages when principal not repaid on due date.

Procedure - pleadings - whether an amendment to an original cause of action or an addition of a new cause of action - appeals from discretionary judgments

Practice and Procedure - cross-vesting - whether the matter should be heard in Queensland

CORPORATIONS - winding up - application for removal of liquidator - whether cause shown - independence and impartiality, in fact and in perception - whether liquidator should be replaced with a liquidator prepared to appoint himself as administrator so that the deed of company arrangement may be propounded - whether Court should consider application for leave to permit liquidator to appoint himself administrator before the liquidator is appointed

PROCEDURE - costs - failure of city agent to notify principal of hearing date - hearing date wasted - order for payment of costs by legal practitioner under Part 52A Rule 43- order for costs payable forthwith under Part 52A Rule 9 - no order refusing re-listing until costs paid

Applications made pursuant to s 208L or s 208M out of time - are appeals within the meaning of s208N - they are not nullities but have irregularity as to institution and subject to other entitlements, may go to a hearing - discretionary powers to suspend or stay.

Negligence - medical practitioner - scope and content of duty of care after joint consultation for sexually transmissable diseases

CONTRACTS - specific performance - contract for transfer of options to take up shares - options subject to stock exchange escrow agreement - same parties involved in both agreements - no supervening event - no termination by frustration - specific performance not available as plaintiffs had by conduct accepted repudiation of defendants CONTRACTS - termination - frustration - whether agreement incapable of performance CONTRACTS - termination by acceptance of repudiation - whether plaintiffs repudiated by conduct after defendants/purchasers refused to complete or whether repudiation by purchasers/defendants held the latter - no claim for damages for breach of contract

CRIMINAL LAW: Application for leave to appeal against sentence - armed robberies and other offences - no question of principle.

Workers Compensation - Extension of time - Futility of claim - Whether amount of damages recoverable would reach the threshold found in s151H of the Worker's Compensation Act 1987 - Application for leave to appeal from decision of trial Judge - Argument not put to trial Judge

CORPORATIONS - winding up - statutory demand - whether bona fide dispute exists - whether offsetting claim raised by affidavit filed within 21 days - whether affidavit accompanying statutory demand adequately "verifies that the debt … is due and payable by the company" - meaning of "verify".

LEAVE TO APPEAL - NEGLIGENCE - Whether the presence of a transverse bar across the footpath at shin height was an obvious hazard - Leave to appeal refused. ND

Stay of proceedings in Commercial List pending determination of related proceedings in Industrial Relations Commission - sufficiency of reasons granting stay - "justifiable sense of grievance" - whether order on same terms appropriate - temporary nature of stay - factors to be considered in exercise of discretion to grant stay (D)

Leases - lease of shop in shopping centre - representations by lessor as to use of shopping centre - change of use of shopping centre - effect of provisions of lease purporting to exclude liability for any reliance on representations - Trade Practices - Misleading or deceptive conduct - pre-contractual representations as to future matter - reasonable ground for making representations - genuine change of mind - reliance - Trade Practices Act 1974 (Cth) ss 51A, 52 - Non-derogation from grant - implied term - principles upon which term is implied

MORTGAGES - priority of estates, debts and encumbrances - whether a particular set of documents confers an unregistered equitable mortgage

Litigant in person - uncertainty as to relief sought - vexatious litigation concerning very modest sum - no question of principle.

Application of slip rule.

Application for Security of Costs

SUCCESSION [156]- Will- Construction- Gift to children- Child predeceased testator- Whether lapse- Whether contrary intention to principle in s 29 of the Wills Probate and Administration Act 1898

Practice - where plaintiff a "disable person" represented by her mother as tutor - where tutor liable for plaintiff's costs - where Protective Commissioner applies to remove plaintiff's mother as tutor because of an interest adverse to plaintiff - where Protective Commissioner declines to accept position of tutor on account of tutor's liability for costs - whether Court may authorise Protective Commissioner to issue instructions on the planitiff's behalf without the appointment of a tutor - Court's discretion - tutor removed conditionally on her remaining liable for costs to date - order dispensing with tutor refused

CONTRACTS [120], INTERPRETATION [12] - General rules of construction of instruments - Commercial and business transactions - Regard to relevant terms of agreement - Meaning to avoid commercial nonsense or inconvenience.

Application for leave to appeal - Part 13 rule 5.

Practice - pleading - whether statement of claim should be struck out - whether pleading disclosed reasonable cause of action - whether pleading had tendency to cause prejudice or embarrasment in the proceeding - whether particulars should be pleaded - whether abuse of process

Sale of land - whether contract unilaterally rescinded - requirements of notice of rescission - whether notice was an unequivocal notice of rescission or a mere warning of intention to rescind

EQUITY - remedies - interlocutory injunctions - application to vary existing order suppressing publication of proceedings and report of investigative committee - validity of report challenged in proceedings - application by non-party media corporation - whether publication of report would cause irremediable damage to plaintiff and defeat his claim for relief - no submission that publication would prejudice proceedings - previous publicity given to report - fundamental principle that proceedings in court should be open - HELD: order suppressing proceedings lifted - injunction restraining publication of report continued

Real Property - transfer altered by registration clerk to save stamp duty - whether fraud under s42 of the Real Property Act 1900 - whether transfer and Register should be rectified.

CRIMINAL LAW - Case stated from District Court - regulatory offences - where offence to cause or permit infected stock to be moved - where co-owner of stock controlled all steps leading to act of movement but did not participate in act of movement - meaning of "cause" - Stock Diseases Act 1923

Practice & Procedure - security for costs - security for undetakings as to damages - whether personal undertaking of individual plaintiff should be accepted - principles considered - whether defendants' motions prosecuted efficiently.

CORPORATIONS - winding up - application by contributory/director for leave under s 459P(2) - whether prima facie case of insolvency when creditor failed to comply with statutory demand - relevant considerations in application for leave

CRIMINAL LAW - offences against the administration of justice - CRIMINAL LAW - whether offence against the administration of justice in Victoria punishable in New South Wales - STATUTORY INTERPRETATION - Interpretation Act 1987 s 12(1) - application of New South Wales statute to matters and things in and of New South Wales

LANDLORD & TENANT - assignment of accrued rights of lessor - concurrent lease - Conveyancing Act s 117 - contrary intention - LANDLORD & TENANT - covenant to deliver vacant possession at end of lease - substantial quantity of rubbish left on premises - breach of covenant

Practice and Procedure - Building and construction matter - Application to dismiss or strike out cross-claim - Application for further and better particulars - Approach of court to successive motions on same or similar issues - Reticence of courts to strike out pleadings - Overriding purpose rule - Pass through of liability - Considerations applicable to large complex litigation - Part 13 Rule 5 and Part 15 Rule 26 Supreme Court Rules

Appeal decision of FTT - preliminary issue, definition of building work - insurance

Legal practitioners - appeal against resolution of Law Society refusing application for practising certificate - order made for issue of certificate subject to conditions - application by Law Society for order for costs in its favour - whether such an order should be made - relevance of manner in which Society conducted itself in the proceedings.

Criminal law- sentence appeal - vehicle offence - mitigation by intoxication - carjacking

Sentencing - Partially suspended sentence - breach of s.12 bond - offender may be gaoled for period of bond not for period of sentence - correct construction of ss.12 and 99(1)(c) of Crimes (Sentencing Procedure) Act - Setting of non-parole period.

Criminal law - appeal against sentence - assault - alcohol related offences.

CRIMINAL LAW: Application for leave to appeal against sentence - defrauding the Commonwealth - illness of applicant - whether any lesser sentence warranted.

Occupier's Liability - Retractable theatre seats - Failure of occupier to erect signage - When failure to erect adequate signage actionable negligence - Extent of occupier's onus to warn of danger - Extent of duty of care - Whether Court of Appeal bound by its earlier decisions.

WILLS - testamentary instruments - test of testamentary character - intention of testator - extrinsic evidence - deceased signed before 2 witnesses a document which contained directions for management of his estate when he became incapable by son who held Power of Attorney - expressions in the direction were claimed to show by implication testamentary intentions - on the construction of the document, it did not express any testamentary intention. - WILLS - testamentary capacity - soundness of mind memory and understanding - elderly (alleged) testator suffered stroke, expressed hostility to son & son's wife without rational basis - showed signs of deterioration in some respects and continuing competence in others - (as alternative ground) plaintiff had not shown sound mind memory and understanding.

Counsel's right of reply

Appeal - defendant (who was not the builder) supplied unsuitable tiles for use in building work - not a building claim - costs - open offer and other discretionary considerations.

Succession - Family Provision - Claim by adult grandson - Plaintiff resided with Deceased and became her full-time carer - Financial and material circumstances of Plaintiff - Factors warranting the making of the application - Competing claims of Defendants.

NEGLIGENCE - essentials of action for negligence - where economic or financial loss - negligent misstatement - Statement of Claim alleged negligence where Defendants gave information to Bank which led Bank to advance money to Cox which Cox used to purchase land and Plaintiff entered into partnership with Cox for vineyard and winery on the land - plaintiff also consulted defendnats for tax advice - Master struck out Statement of Claim and allowed leave to amend - on appeal and cross-appeal, struck out without leave to amend - consideration of development of law of economic loss torts - consideration of causation, Fair Trading Act and Fiduciary Duty Claims. - PRACTICE and PROCEDURE - pleadings - striking out Statement of Claim Pt15 r.26 where pleading discloses no reasonable cause of action - claim outside limits of negligent misstatement law.