Cases and authorities

Appeal CTTT - ex parte hearing - refusal to grant rehearing

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - children in care of State - Court's parens patriae jurisdiction to make order for care of children - effect of earlier decision of Magistrate in Children's Court on same question

Option issue - TPA - Damages

EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - In general - Need to establish authenticity.

Criminal law - appeal against sentence - two armed robberies - driving motor vehicle without consent - whether sentences excessive - application of Pearce v The Queen - consideration of parity - adequacy of discount for utilitarian features and remorse - necessity for R v Ellis allowance concerning sentence for earlier armed robbery.

stern sentences for multiple armed robberies and other serious offences correct - subjective features did not warrant lesser sentences than those imposed

CONTRACT - Principles of construction - Inter- relationship with principles governing implication of terms - IMPLIED TERMS - Duty to co-operate - Duty to act in good faith - Duty to act reasonably - Whether duty of co-operation may be considered an implied legal duty discerned by a process of construction, a rule of law or an implied term - Principles governing implication of term in connection with the maintenance of a business - Principles governing exclusion of implied terms - CAUSATION AND DAMAGES - Difficulties of assessment - Hypotheticals - Lost Chance - Loss of benefit or detriment dependent upon the making or exercise of discretionary decisions - Doctrine of efficient breach - Vicissitudes - Contractual and other arrangements of parties carrying on business of providing mobile telecommunications services - [see extended catchwords within]

Practice & Procedure - application for transfer order under cross-vesting legislation - relevant considerations - pre-existing determination refusing a transfer order in relation to proceedings in the other state, where the other proceedings would eventually include the same issues

Appeal from Small Claims Division of Local Court - limited avenue of appeal - ground of lack of jurisdiction or denial of natural justice only.

Compensation to relatives - deceased killed in Papua New Guinea - likely employment situation had he survived - assessment of likely superannuation entitlements - no discount for remarriage - cross-claims by defendant against three insurance companies - contract of employment entered into in NSW, but NSW insurer excluded from ambit of claim - Papua New Guinea insurer held liable -

Compensation to Relatives proceedings commenced in NSW - deceased died in accident in Papua New Guinea - statements of claim said to be pursuant to NSW Compensation to Relatives Act - application to amend statements of claim to insert claims under Wrongs Act (PNG) following High Court judgment in Regie National des Usines Renault SA v Zhang - actions now statute barred in Papua New Guinea - whether Papua New Guinea limitations legislation applies to defeat claims - discussion of the effect of Zhang - held that amendment not necessary.

Compensation to relatives - deceased killed in Papua New Guinea - likely employment position had he survived - assessment of superannuation - NSW law applies to quantification of damages, but provisions of NSW Workers Compensation Act do not apply - no discount for possible remarriage - spouse's claim for nervous shock - tort committed in Papua New Guinea - Papua New Guinea common law presumed to be the same as local law - claim allowed defendant's cross-claim against three insurance companies - contract of employment entered into in NSW, but NSW insurer excluded from ambit of claim - Papua New Guinea insurer held liable

Corporations Law. Application to set aside statutory demand. Demand set aside. No matter of prinicple.

CORPORATIONS - inspection of books and records - form of order - CORPORATIONS - oppression - exclusion of member from participation in affairs - significance of whether member deprived of rights it was seeking to enforce - appropriate form of order in oppression cases

Succession - Family Provision - Claim by adult daughter - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for her proper maintenance - Competing claims of other beneficiaries - Practical effect of provision claimed by Plaintiff would be to dispossess youngest child of testator of his residence.

Practice & Procedure - approved settlement - confidentiality of plaintiff's materials

PROCEDURE - miscellaneous procedural matters - whether Supreme Court proceedings seeking declaration of equitable interests in property should be stayed pending application for forfeiture order under Proceeds of Crime Act 1987 (Cth) of that property - TRUSTS - discretionary trusts - rights by virtue of being nominated as "beneficiary" or as taker in default of appointment

CORPORATIONS - winding up - liquidator's examination - failure of witness to attend when summoned - "reasonable cause" - costs of liquidator's application for bench warrant

Equity - Priority - Equitable interests - Maxim that no party may take advantage of its own wrong - Third party - Purchaser of equitable interest for value without notice - Leases and tenancies - Options - Options to renew - Options to purchase - Whether option to renew had been exercised - Contract - Options - Options to purchase property - Exercise of option - Conditions - Misrepresentation - Priority between holder of option and third party acquiring equitable interest bona fide for value and without notice

CRIMINAL LAW - sentencing - murder

MORTGAGES - mortgagee's remedies - notice before exercising power of sale Real Property Act 1900 s.57(2)(b) - finding of fact that notice delivered - consideration of requirements of Conveyancing Act 1919 s.170 - separate question answered "yes", notice given.

Evidence - whether finding open that evidence improperly obtained - - Procedure - objection - voir dire - court's obligation to understand nature of evidence objected to

Building and Engineering Contracts- construction- remuneration- Preliminaries-AS4300-1995 cl.42,cl.47-lump sum contract incorporated cl.42 Certificates and Payments- Contractor made Payment Claim including part of lump sum allocated to Preliminaries on time basis being proportion of time passed to whole time available- Superintendent allowed on percentage-of-works completed basis - Contractor disputed Certificate, gave notice of dispute and claimed urgent Declaratory Order establishing that time-basis was correct- Contractor contended that time basis was impliedly required because Tender Cash Flow submitted with Tender and incorporated in Contract projected even flow of sums allowed for Preliminaries- no clear identification in Contract of what work was Preliminaries: Held: time basis was not required by express or implied terms and Declaratory Order as sought should not be made - percentage of works completed basis adopted by Superintendent may not be correct and Court would give consideration to further claims - reasons for interlocutory rulings on stay of proceedings, summary disposal, security for costs.

Summary Judgment - claim for possession - mortgage does not fix date for repayment of principal sum - was it repayable upon demand - default - operation of statutory provision.

Family Provision. Application under Family Provision Act by son with cerebral palsy. Consideration of conduct of plainiff towards testator. Order for further provision made.

Disciplinary body - judicial review - procedural fairness - obligations of domestic tribunal.

Summary relief - disability in relation to cause of action - nexus between disability and cause of action - issue should be left to trial or be determined as a separate question where material throws up a triable issue.

CRIMINAL LAW - SENTENCE - Application for leave to appeal from sentence - where fixed-term sentences imposed - where unsuccessful attempt to obtain assistance against deceased from police - whether sentences imposed for manslaughter and malicious wounding within reasonable exercise of sentencing discretion - whether sentencing judge minimised degree of provocation - where challenged findings of fact not of central significance to sentencing process

Appeal against severity of sentence - offence of being knowingly concerned in importation of trafficable quantity of methorphan and methylampetamine - further evidence not received - appeal dismissed.

Criminal law - conviction - appeal - verdict unreasonable or unable to be supported by the evidence - relevant principles.

Application to reopen

Strike out statement of claim - Misfeasance in public office

CORPORATIONS [177]- Voluntary administration- Liquidator becoming administrator- Company able to pay 100 cents in dollar- Procedure.

LANDLORD AND TENANT - lease of part of property - subject matter of lease - subject matter of option to purchase - whether discoverable from lease - rectification - resort to evidence of background facts - conditional contract upon exercise of option to purchase - lessor's failure to take steps required by condition - whether lessor disentitled to regard contract as discharged

PROCEDURE - notice to produce - whether abuse of process - whether impermissible substitute for discovery

PROCEDURE [113] & [115]- Order- Breach of contract- Appropriate to order damages plus injunction- Whether proper to order damages to be assessed by Master.

Appeal against Magistrate's decision - powers of Special Constable to require information under Roads Act 1993 - presumption against requiring information that may incriminate - meaning of "immediately" - arrest, whether words enough - resisting arrest

PROCEDURE [110] - Supreme Court Procedure - Practice under Supreme Court Rules - Trial - Further consideration - Ambit.

CORPORATIONS - voluntary administration - variation of deed of company arrangement by extending termination date of deed

EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - covenant restricting employee's activities after termination of employment - enforcement by injunction - meaning of "solicit" WORDS AND PHRASES - "solicit"

PROCEDURE - miscellaneous procedural matters - transfer of proceedings under cross-vesting legislation - whether in interests of justice for proceedings to be transferred to Supreme Court of another State

Real Property - Easements. Application under section 88K of the Conveyancing Act 1919 for a drainage easement. No Council approval for development to be serviced by the proposed easement. Whether easement was necessary. Held it was not. Discussion of the need for particularity in respect of the proposed use or development.

Corporations Ljaw. Application to set aside statutory demand. Whether matters sufficiently raised in affidavit filed within time. Demand set aside. No matter of principle.

Criminal law - appeal - sentence - parity - co-offender's role in criminal enterprise greater than that of applicant - appeal allowed - resentencing - rehabilitation