Cases and authorities

ASSOCIATIONS AND CLUBS [49] - Incorporated associations - Matters relating to incorporation - Effect of incorporation - Vesting of property - Whether property vested is freed from charitable trust on which it was previously held - CHARITIES [80] - Charitable gifts and trust - Validity and practicability - Property subject to charitable trust - Other matters - Property held to permit its use by a particular entity as a church of the Macedonian Orthodox Religion - Validity and terms of trust - EQUITY [111] - Trusts and trustees - Express trusts constituted inter vivos - Declaration of trust - Necessity for intention - Ascertainment of intention - Principles applicable - STATUTES [21] - Acts of Parliament - Interpretation - Rules of construction - Where meaning ambiguous or uncertain - Presumptions as to legislative intention - Not to alienate vested proprietary interests or subvert common law or equitable rights - General principle - Necessity for clear language.

Action for false imprisonment against police officers and health workers - s 24 Mental Health Act - no relevant "offence" committed - detention by police officers unlawful - no case against hospital for actions of health workers - damages against first defendant on compensatory basis - not a case for aggravated or exemplary damages.

Criminal law - sentencing - soliciting to murder

Practice and procedure - claim for damages for professional negligence - application to dispense with trial by jury - complexity of issues.

SUCCESSION [325]- Application by testator's only child- Fear that a plaintiff might squander his or her benefaction goes to the form of the order, it does not prevent it- Orders- Costs- Prima facie costs to be capped at the amount applicant receives by way of legacy.

JUDGMENT - Delivery - Reasons for rider to answer to question (a).

COSTS - indemnity costs - ruling on claim for costs awarded to Hillston to be on indemnity basis - rulings for many Notices of Motion - indemnity costs awarded in some cases.

Sexual offences - delay in complaint - sufficiency of "Longman" directions - use of evidence of "uncharged acts".

CRIMINAL LAW - JURY - juror inadvertently exposed to inadmissible evidence - whether falure to discharge jury - whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially - whether direction adequate to correct any prejudice or perception of prejudice to the accused EVIDENCE - whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial - whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances - whether accused has a fundamental right to confront accuser where issues of identity involved - whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses - whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b)) EVIDENCE - whether inadequate direction as to lies - whether inadequate direction as to accomplice evidence

Admission of identification evidence of Sgt Rayner and directions as to that evidence not erroneous - admissibility of evidence of drugs found at applicant's premises 2 months after offence - directions not inadequate - cross-examination by Crown of defence witness did not breach the credibility rule as matters had substantial probative value

Whether Transfer required to be stamped at settlement - description of transferring parties on Transfer - Default of settlement under Property (Relationships) Act 1984 - Extensions of time - Whether time remained of the essence - Application for order under s 39 Property (Relationships) Act 1984 - Award of interest - Discretionary factors.

Appeal - application for new trial based upon deficiency of reasons - motor vehicle accident - causation of injuries in issue - whether new trial would be futile (ND)

TORTS - Negligence - Jury trial - Whether verdict against the evidence and against the weight of the evidence - Whether no evidence capable of sustaining verdict - TORTS - Negligence - Liability of statutory authority - Breach of duty of care by failure to erect warning signs and positioning of flags on beach - Where swimmer dived under wave and hit submerged sandbar

CHARITIES [89]- Effect of racist gift- Exemptions under the anti-discrimination legislation- Intent of the testator. SUCCESSION [143]- Will- Construction- Significance of punctuation- Denial of benefit to next of kin- Effect of presumption against intestacy- Effect of condition that is void for uncertainty.

interest on debt under judgment or order

PRACTICE AND PROCEDURE - subpoena - subpoena in aid of prayers for relief in interlocutory application - whether abuse of process

appeal from judgment of Master - Supreme Court Rules Part 13 Rule 5, Part 15 Rule 26 - pleadings - an application for summary dismissal of proceedings - application to strike out pleadings - plea that benefit of policy assigned to third party - claim on policy of insurance - standing to bring or maintain proceedings - claim in contract - whether statute barred - claim in deceit - Limitation Act 1969 (NSW) - nature of an appeal from a Master

COSTS - indemnity costs - Calderbank letter - whether all evidence must be served when offer made - reasonable offer

DAMAGES - Compensatory damages - Exemplary damages in respect of trespasses to land.

Corporations - Statutory demand - Whether there is a genuine dispute as to the existence of the debt - Offsetting claim - Whether there must be mutuality between the character of the offsetting claim and the character of the demand.

Retirement Villages Act (Part 10 Division 5) - executor of estate wishing to sub-let a unit previously occupied by the deceased

SUCCESSION - wills, probate and administration - the making of a will - where attesting witness is spouse of beneficiary - whether court satisfied that testator knew and approved of gift and that gift made freely and voluntarily - PROCEDURE - costs - where beneficiary succeeds in showing testamentary gift not void although beneficiary's spouse was attesting witness - no case for departing from order required by Supreme Court Rules in relation to plaintiff's costs - costs of persons cited who do not become parties - where their participation did not add to debate on issues before the court

Procedure - Trial of two co-accused - Murder - Cut-throat defence - Whether separate trials should have been ordered

CRIMINAL LAW - SENTENCE - knowing concern in importation of heroin - where circumstantial case - where trial judge erred in leaving to jury specific lie as evidence of consciousness of guilt - whether proviso applicable in circumstances of error in trial - whether proviso applicable on circumstantial case

Application for interlocutory injunction pending application for leave to appeal - employee refuses to provide information necessary for proper record-keeping - whether damages an adequate remedy - whether interlocutory relief appropriate in circumstances (ND)

DISCIPLINARY PROCEEDINGS - proceedings relating to professional misconduct and to have the name of a solicitor removed from the Roll of Legal Practitioners -certificate under s128 Evidence Act should be granted - COSTS - where proceedings were commenced in incorrect division of the Court - where a proper party to proceedings not initially joined to the proceedings - whether that party is entitled to reasonable costs

Evidence - Documentary Evidence - Statutory Provisions relatng to business records - Corporations Act s1305 re financial records

CORPORATIONS - Winding Up - Liquidation of corporate trustee - Whether mareva order should be varied to allow liquidator access to trust property - Whether a liquidator is entitled to indemnity from trust assets

Contracts [15]- Illusory contracts- Contract subject to approval of party's own board. Contracts [105]- Entire agreement clause- Significance.

EVIDENCE - DOMUNENTARY EVIDENCE - STATUTORY - Provisions relating to business records - Section 1305 of Corporations Act.

Criminal law - application for leave to appeal against sentence - co-offender dealt with in Children's Court - two years younger than applicant - relevance of sentence imposed under Children's Court regime.

Criminal law - application for leave to appeal against sentence - supply large commercial quantity of heroin - Form 1 offence - another offender earlier sentenced - parity - whether sentence excessive.

Workers Compensation- Limitations of actions- Leave to commence proceedings required- When to exercise the discretion- Onus of proof upon the worker- Must be fair and just to extend time- Explanation of delay required- Leave not to be granted if it will lead to prejudice which will prevent a fair trial- Must demonstrate viability of the cause of action- Workers Compensation Act 1987, s 151D. Workplace Injury Management and Workers Compensation Act 1998- Retrospective application of the Act- Changes to rights to obtain common law damages in certain situations- Futility of an action brought out of time, even where injury occurred before the commencement of the amendment- Workers Compensation Act 1987, ss 151G, 151H. (D)

LEGAL PRACTITIONERS - professional liability - duty of care owed by a professional legal advisor to client - negligent provision of advice - legal practitioners must exercise reasonable care and skill in provision of professional advice - tortious duty of care identical to contractual duty - whether solicitor can rely on the expertise of a barrister - whether a reasonably competent lawyer could have given any advice other than that the appellant's case was hopeless - whether failure to advise that case hopeless constitutes a breach of duty - whether District Court had jurisdiction to determine claim for equitable relief - whether trial judge erred in refusing to allow leave to amend claim for equitable relief - District Court Act - s134(1)(h) - whether trial judge erred in refusal to exercise discretion to allow leave to amend claim for equitable relief - D

Professional Negligence - application to set aside Judgment - consent order - self executing order - whether a contract - default judgment - whether final or interlocutory where damages to be assessed - warning when default judgment

PROCEDURE - Discovery and Interrogatories - Whether interrogatories requiring the giving of information rendering an action for damages for breach of contract unnecessary, can be administered - Defendant refusing to name bull from which semen taken to fertilise cows under an embryo flush programme - Whether interrogatories are "necessary" in terms of Supreme Court Rules 1970, Pt 24 r 5(2) - Whether mandatory injuction requiring answers to interrogatories should be made - Whether the defendant should be orally examined as to the identity of the bull

CONTRACT - offer and acceptance - letter asserting contract already exists not acceptance of offer - SPECIFIC PERFORMANCE - informal agreement - no question of principle

CONTRACT - breach of contract - contract for provision of new computer system to vehicle distributorship - system allegedly faulty - expert evidence that problems with system were confined to one area and that installation of system was poorly managed by plaintiff, particularly in failure to provide "Requirements Analysis" to defendant - damages claimed only in terms of replacing system entirely - whether system so inadequate that plaintiff received no effective benefit and was entitled to cost of replacing system entirely - whether total failure of consideration - whether defendant entitled to recovery of its fees, claimed in separate proceedings - Held: plaintiff's claim dismissed as plaintiff received significant value for work done by defendant - defendant entitled to recover fees

Evidence by telephone link - whether defendant can travel

CONTRACTS - construction and interpretation of contracts - no question of principle

Medical negligence - meningitis not diagnosed - when infection contracted - what warning, if any, was required - what warning was given - was there a breach of duty - causation.

Charge on insurance moneys - enforceable by way of action against insurer - granting of leave - discretionary power and prescription - does policy indemnify against alleged liability - exclusion clauses - discretionary considerations (including viability of defendant).

Statutory Interpretation - Appeals - Leases - construction of the word 'permit' - quiet enjoyment - whether an error of law or fact

Applications under s.48(3)(g) and s.48(4) of Proceeds of Crime Act granted - proceeds of crime - application to avoid forfeiture - monies expended on family home - monies obtained from overseas - whether derived from unlawful activity - not derived from unlawful activity and was lawfully acquired - liability to income tax - no report under Financial Transactions Reports Act - hardship - public interest that order not be made.

CORPORATIONS - provisional liquidation - medical defence organisation makes "call" on members before provisional liquidator is appointed - provisional liquidator negotiates compromises of company's claims for call, and payment agreements to be discharged by performance more than three months after entered into - whether Court should approve under ss 477(2A) and (2B) - whether Court should give directions that provisional liquidator would be justified in acting as proposed

CORPORATIONS - Winding up - Application to set aside summons for examination and order for production - Inquiry as to remaining level of indemnity under policy indemnifying officers of the corporation - Proceedings by liquidator against officers - Whether inquiry oppressive - Order for production issued to insurer and summons for examination to its officer - Whether inquiry limited to defendants or potential defendants - A creditor funding liquidator and acquiring debts from other creditors - Whether inquiry in aid of third party - Whether abuse of process - Directions as to matters to be inquired into at examination. - PROCEDURE - Discovery - Whether access to affidavit in support of summons for examination should be granted - Covering up portions of documents said to be privileged or confidential

TORT - Negligence - Duty of care - Liability of statutory authorities - Car accident at road works - Where funded by RTA, road owned by Council, work carried out by sub-contractor - TORT - Negligence - Causation - Where multiple possible causes - Where little evidence from plaintiff - CONTRACT - Indemnity clause - Relevant approach - Whether intended to cover Principal's own negligence - DAMAGES - Life expectancy - Where injury interacting with pre-existing disease - PRACTICE AND PROCEDURE - Amendment of grounds of appeal - Where pleading not pressed at trial.

CRIMINAL LAW - Evidence - application by Crown to cross-examine witness - evidence "unfavourable" - Evidence Act s38(1)(a) - witness having no recollection at trial - evidence led from statements to police - material in one statement supporting accused's case qualified in later statement

Proceedings founded on compromise agreement - availability of statutory defence - character of claim - waiver.