Cases and authorities

Transfer from District Court - threshold requirements - discretionary considerations and onus - onus not discharged.

APPEALS - Stay of orders - Security for costs - Need for 'special circumstances' - CORPORATIONS - Liquidators - Interest in proceedings - Liability for costs.

Appeal from Master: Amendment of statement of claim - issue of vicarious liability - whether amendment futile.

MENTAL HEALTH [1] & [8]- Jurisdiction- New Zealand domiciliary- Large verdict obtained in NSW- Whether verdict moneys should be managed in New Zealand.

TORTS - Miscellaneous Torts - Other economic torts - Deceit - Sale of share in company on valuation - Whether valuation false and dishonest - Whether valuation approved by solicitor - Whether false and dishonest representation of approval - Whether purchaser acting qua director of company - Whether any cause of action against company

Application for suspension of determination heard by Registrar exercising referred power - competency of review by a Master - is an application for leave to appeal an appeal for the purposes of s 208N.

Appeal from Local Court - question of construction of written agreement - no error in respect of issues litigated.

CRIMINAL LAW: Sentence - Crown appeal - dangerous driving occasioning grievous bodily harm (two counts) - driving offences on Form 1 - mature woman with significant health problems, physical and mental - driving while affected by prescription drugs - exceptional case.

WORKERS COMPENSATION ACT - election to receive lump sum compensation -leave to revoke earlier election, so as to allow claim for common law damages -further material deterioration in the person's medical condition - WORKERS COMPENSATION ACT - leave to commence common law proceedings out of time - lengthy delay - evidence explaining delay - presumptive prejudice only

PRACTICE AND PROCEDURE - application to withdraw judgment - whether judgment proceeded on a misapprehension of fact or law - whether any misapprehension warranting the exceptional step of setting aside or amending the judgment

Safe system of work - box packed in under bench - worker injured hand when using force to pull it out - hand came free and struck underside of bench - whether forseeable risk of injury - whether alternative system of work available - on facts, trial judge's finding of breach of duty of care not erroneous.

PRACTICE AND PROCEDURE - Pleadings - Leave to amend - Requirement of clarity - TRADE PRACTICES - Misleading conduct - Whether representations in connection with court proceedings can be in trade or commerce - Whether plaintiff must be misled.

CORPORATIONS - oppression and unfair prejudice - unlawful and unauthorised convening of meeting - invalid decisions - no ground for curative order under s 1322

Imputations - capacity - form

LANDLORD and TENANT - Option and Agreement to Purchase - right of first refusal - whether offer to tenant was made - whether when made it could be withdrawn - decision on terms of lease.

Criminal law - admissibility of evidence - whether evidence was obtained improperly - Evidence Act, s 138.

PRACTICE AND PROCEDURE - discovery - privilege against exposure to a penalty - plaintiff takes proceeding seeking declarations of contravention, disqualification orders and compensation orders under Corporations Act - whether defendants can rely on privilege to avoid giving discovery and filing witness statements before trial

VENDOR and PURCHASER - Breach of contract - purchaser in First Proceedings claimed to set aside Notice to Complete - proceedings adjourned on parties' agreement to settle within 4 days of vendors producing s.149D Certificate - to obtain s.149D Certificate vendors required by Council to remove illegal improvements - in correspondence purchaser reserved right to claim compensation for removal of improvements - vendors asserted that this was repudiation by purchaser and purportedly terminated - vendors did not remove illegal improvements or obtain s.149D Certificate - held that there was no breach or anticipatory breach or repudiation by purchaser, termination was ineffective and contract was still in force.

ADMINISTRATIVE LAW - defendant empowered by Motor Dealers Act to give notice to show cause if of opinion that there are reasonable grounds for believing plaintiff's business carried on in dishonest or unfair manner - Act empowers defendant to impose restriction on licence if satisfied that matter has been established - Director-General gives notice and then makes determination for stated reasons - reasons include matters incorrect in law - determination invalid

Imputations - capacity - form

Imputations - capacity -form

Sentence appeal - plea of guilty - utilitarian value - effect of evidence of contrition

Torts - Negligence - Occupier's liability - Duty of care to third parties - Injury caused by criminal assault of employee - Whether employer vicariously liable - Whether duty to take care to prevent deliberate harm - Whether breach of duty

ADMINISTRATIVE LAW - Racing industry - Three-tiered internal tribunal system - What type of appeal lies to final tier - Whether intervention by final tier requires finding of error within grounds of appeal - Natural justice - Whether final tier required to notify appellant that it was seriously considering increase in penalty - GAMING AND WAGERING - Horse racing - Bookmakers - Whether certain transactions were "bets" or "legitimate wagers" - Whether certain conduct prejudicial to the image of racing - WORDS AND PHRASES - "Appeal" - "Bet".

EVIDENCE [230] - Witnesses - Hostile witness - Whether witness has made prior inconsistent statement - Matters to be taken into account on application to cross examine own witness.

[INTEREST] - Whether interest should be awarded on judgment when the asset damaged by trespasses has been retained and has increased in value - Lengthy delay in bringing proceedings on for hearing - [COSTS] - Claim for indemnity costs by reason of abandonment of Defences and Cross-Claim on 5th day of an 8 day trial.

Contract - Construction - Consideration of principles permitting Court to take into account more than internal linguistic considerations and to consider the circumstances with reference to which the words were used and from those circumstances, to discern the objective which the parties had in view - Consideration of principles as to admissibility of evidence to identify subject matter of an expression used in an agreement - Best endeavours clauses - Onus of proof of damages

Practice and Procedure - Motion to dismiss proceedings - Statute barring of actions - General rule as to when a cause of action accrues is subject to qualifications when the very act of negligence that inflicts the injury also has the effect of precluding the bringing of an action for damages - Need to establish a coincidence between the negligent conduct and the conduct that conceals from the plaintiff that he or she has a cause of action - relevance of failure to inform which precludes putative plaintiff from taking a relevant action

SOLICITORS - ALLEGED NEGLIGENCE AND BREACH OF RETAINER - FACTUAL DISPUTE - CREDIBILITY - NO SPECIAL POINT OF PRINCIPLE

Practice - Costs - Security for costs - Requirement for timely application - Stepped orders - Unfairness involved in failing to press further applications for increased security until shortly before final hearing

offences against Orders made pursuant to Stock Medicines Act 1989 - anabolic steroids - supply - use and record keeping - Crimes Act 1900 - Part 1A - application of criminal law extended beyond the territorial limits of NSW - determination of penalty - first prosecution under relatively new legislation - credit for pleas of guilty - costs

Criminal Law - special hearing - murder - defence of mental illness - no question of principle

Costs - Principles - Apportionment in terms of issues - Declarations - Orders - Stay of proceedings

TRUSTS AND TRUSTEES - resulting trust - property purchased in name of one sister with money provided by another sister - whether intention of second sister that first sister should have beneficial ownership established so as to rebut resulting trust - payment of money by first sister to second sister for specific purpose - purpose rendered unachievable by subsequent events - whether money held on resulting trust for first sister

TRUSTS AND TRUSTEES - property purchased in names of joint tenants in 1976 - whether company subsequently incorporated entitled pursuant to resulting trust as real purchaser - whether constructive trust should be imposed - "title by estoppel" - whether charge for outgoings incurred should be imposed - CORPORATIONS - promoters - whether purchasers of property in breach of duties as promoters so that property held on constructive trust - REAL PROPERTY - possessory title claim by company - periodic occupation by one co-owner - not shown to be traceable to right derived from claimant to title by adverse possession

Claim for cost of goods sold - cross-claim for breach of contract and misleading conduct under s 52 Trade Practices Act - various heads of cross-claim - claim under Trade Practices Act upheld - claim not affected by exemption clause in principal contract - inadequate evidence as to damages - plaintiff's claim largely successful

Succession - Family Provision - Claim by adult son - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for his proper maintenance - Competing claims of other beneficiares.

Contracts. Agreement for sale of shares. Purchase price payable by two instalments with the title to pass on payment of first instalment. Whether there was a breach of this and other implied terms. Breach found and vendor denied recovery of remaining instalment.

Imputations - capacity - form

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Demand set aside. No matter of principle.

ADMINISTRATIVE LAW APPEAL from Nurses Tribunal - definition of "unsatisfactory professional conduct" in Nurses Act 1991 - case where primary facts raised questions of degree a decision upon which was itself an unappealable question of fact - whether the contract of employment affected the nature of the conduct required of the nurse by the statute - whether the Tribunal's reasons disclosed error of law - Adequacy of reasons

CORPORATIONS-oppression-disputes as to entitlement to shares in private company- 100 shares-holder of 50 shares claimed to be entitled to remaining 50 under oral agreement with their holder, now deceased- claim failed on facts and 50 shares passed to executor of deceased holder- claim by executor for remedy for oppression and for winding-up succeeded on the basis of management of company in interests of continuing shareholder, irregular payments, absence of dividends and state of conflict- decision for compulsory purchase or, if not practicable, for winding-up.

CRIMINAL LAW - Appeal - Evidence by person criminally involved in offences - Discount in sentence given to that person - Liabiliy of that person to be re-sentenced - Whether extent of discount admissible - Whether discount and liability to be re-sentenced should be led in chief by Crown - Sufficiency of warning under s.165 of Evidence Act 1995 - Points not taken at the trial - Whether miscarriage of justice occurred by reason of failure to lead evidence of extent to discount and/or insufficiency of warning - Comment of Crown prosecutor, repeated by judge, that appellant had an interest to give certain evidence - No objection taken at the trial - Whether miscarriage of justice occurred.

PRACTICE - COURT OF APPEAL - DEATH OF PARTY - AMENDMENT OF RECORD - NO QUESTION OF PRINCIPLE

Contract- Incorporation of exemption and exclusion of liability clauses- Must do all that is "reasonably sufficient" to draw notice to it- What is "reasonably sufficient"?- Contract- Rule in L'Estrange v Graucob- Ambit of operation of rule- Significance of signed document- Ticket cases considered. Construction of contract- Formed by a series of communications and behaviour of the parties- Must consider the whole body of material- Objective approach to construction- Signature strong indication of intention to be bound- Negligence- Bailee for reward- Standing to sue- De facto possession- Dispute as to whether carrier took goods on customer's risk or carrier's risk. Practice- When leave should be given to adduce further evidence- Carelessness does not constitute special grounds. (D)

Negligence - Duty of Care - Bank - Duty to employee - System of delivery of cash - Security within bank - Level of protection required - Evidence - Expert opinion - Whether outside specialist knowledge - Ultimate issue

CRIMINAL LAW - supply prohibited drug - "permit" supply - what constitutes - police officer not taking steps to prevent supply - CRIMINAL LAW & PROCEDURE - challenge to indictment - evidence available insufficient to constitute offence - when depositions from committal can be looked at - demurrer - motion to quash - permanent stay - appropriate order

CORPORATIONS [290]- Provisional liquidator- Powers and Duties.

SENTENCING - police corruption - bribery - pervert course of justice, etc