Cases and authorities

CRIMINAL LAW - Assault - Whether physical contact an ordinary incident of social intercourse - Whether consent must be to particular contact or may be implicit and general - Whether prosecution must prove lack of belief in consent - CRIMINAL LAW - Kidnapping - Whether intention to hold must be intention to hold irrespective of the willingness or consent of the victim.

CRIMINAL LAW - Appeal against conviction and sentence for murder - plea of not guilty - Crown appeal against leniency of sentence - Form 1 offences - obtain benefit by deception- exception to hearsay - ERISP evidence - admissibility of out of court statement where maker unavailable - statement against interest.

CRIMINAL LAW - sentencing - application for guideline judgment - take into account - uncharged offence - Form 1 - whether sentencing for principal offence only - discretion not to take into account - Crimes (Sentencing Procedure) Act 1999, s 33.

TORT - induce breach of contract - Sydney 2000 Olympic Games - Agency Agreement to sell International Memberships in the Olympic Club to residents of Mainland China - Olympic indicia and images - Sydney 2000 Games (Indicia and Images) Protection Act 1996 (NSW) - justification for inducement to breach contract - estoppel - no order for costs due to defendant's delay

APPEAL AND NEW TRIAL - fresh evidence - due diligence - no question of principle - MISLEADING AND DECEPTIVE CONDUCT - s 42 Fair Trading Act - - no question of principle

PRACTICE AND PROCEDURE - stay whether civil proceedings should be stayed when criminal prosecution likely

CORPORATIONS LAW 2001, Part 5.4 - winding up in insolvency - statutory demand pertaining to disputed judgment debt - effect of failure to lodge application to set aside within prescribed time limit - no abuse of process for creditor to exploit rebuttable presumption of insolvency to recover disputed debt under current statutory scheme - ND

CORPORATIONS - winding up - joint stock company incorporated by statute - whether "Part 5.7 body" - whether winding up order may be made in exercise of court's inherent jurisdiction

ADMINISTRATIVE LAW - procedural fairness - natural justice - members of club suspended - whether charge clearly set out alleged offences

Negligence - public authority - diving from rock platform in public reserve - breach of duty - obviousness of danger

SENTENCING - murder with aggravated armed robbery taken into account - affray - act to pervert the course of justice - young offender

Assessment of costs ordered to be paid on an indemnity basis - assessment on that basis distinguished by statutory regime - onus - material to which the costs assessor may have regard - actual basis for determination - error must justify disturbing of decision.

Succession - testamentary capacity - mutual wills - no arrangement not to revoke wills. - Family Provision - whether part of household of deceased - dependency. - Family Provision - claim by children of deceased - out of time - insufficient explanation for delay - leave denied.

CRIMINAL LAW - remarks on sentence - 2 counts of murder - pleas of guilty - Form 1 offences - obtain money by deception.

Negligence - onus of proof - independent witness - statement against interest.

CORPORATIONS [34]- Oppression- Service company trustee of unit trust- Minor breaches of duty by directors- Failure to observe pre-emption provisions- Remedy available to plaintiff in compulsory buy-out provisions of trust deed- No order made.

Motor accident, negligence, identification of driver, application for leave to proceed pursuant to s. 52(4) Motor Accidents act 1988

Imputations - form - capacity

Jurisdiction of Tribunal - building claim - residential building work - meaning of work involved in the construction of a dwelling.

Defamation - aggravated damages - exemplary damages - significance of limited interstate publication - relevance of bad reputation

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

Application to amend judgment - indemnity costs

SUBPOENAE - documents held by ASIC including transcripts of interviews of directors within the Ansett Group - whether in relation to a claim under the Travel Agents Act 1986 the subpoenae should be set aside - Part 37 Rule 8 - "sufficient interest" - "fishing" - abuse of powers

Appeal from interlocutory order - magistrate sets aside subpoenas - subpoenas inter alia too wide - lack of legitimate forensic purpose - reluctance to intervene on matters of practice and procedure.

Criminal Law - sentencing - no question of principle

Criminal Law - sentencing - no question of principle

Criminal law - leave to withdraw plea of guilty - leave if plea not attributable to consciousness of guilt - no separate ground that a doubt about guilt - ultimate question whether miscarriage of justice - burden on applicant to establish basis for leave - findings of fact as to consciousness of guilt not shown to be in error.

Costs - Offer of compromise

MORTGAGES - Remedies of mortgagee - Power of sale - Alleged breach of duties - Sale at undervalue - Whether error by primary judge - ND

Discovery - application for inspection

Damages - successful businessman - loss of business ability - assessment of loss - profit on sale of successful business - whether should be brought into account

CORPORATIONS - voluntary administration - second extension of convening period - applicable provisions

PROFESSIONAL NEGLIGENCE - whether solicitor negligent in transaction involving Cambodian land - whether conflict of interest - whether sufficient for solicitor to say that he asked for one party only - whether solicitor had duty of care to other party with whom he dealt

TAXES AND DUTIES - Stamp Duties - Value of Dutiable Property - Consideration for Notional Transfer - Agreement for Sale of Shares - Purchase Price Less Dividend Amount - Purchaser lends Company money to pay Dividend - Consideration moving a Transfer must pass away from Transferee to acquire rights the subject of the Transfer and no other rights - Payment to acquire two assets, Shares and Debt - Consideration limited to Purchase Price for the Shares

International Arbitration Act 1974 (Cth) - when an arbitrator withdraws from office, within meaning of Article 15 of INICTRAL model law.

CRIMINAL LAW: Sentence - manslaughter - unlawful and dangerous act.

CONTRACT - formation - construction - repudiation - breach - no question of principle - CORPORATIONS - de facto reduction of capital with assent of all members - validity

Cause of Action not maintainable - S.19 Limitation Act for the benefit of S.4 Compensation to Relatives Act.

Aggravated damages - ambit and particularisation of claim - the rule in Triggell v Pheeney - pre and post matter complained of publications - any requirement to specify defamatory meanings

Criminal appeal - sentence appeal - Crown appeal - larceny. (ND)

SENTENCING - Crown appeal - drug & firearm offences - pleas of guilty - assistance to authorities

LOCAL GOVERNMENT - whether development consent lapsed - whether construction works commenced within 5 years - whether breach of condition - whether developer failed to obtain authority for tree clearing- meaning of condition respecting tree clearing discussed - whether developer failed to obtain construction certificate - estoppel

Tort of conspiracy - Joint venture - Damages - Loan - Reflective damages - Calculation of damages - Exemplary damages - Contumelious disregard - Indemnity costs - Offer of compromise - Calderbank offer - Whether relevant delinquency - Personal loss - Fiduciary duty - Recover of loss - Whether double recovery - Direct liability - Contingent liability

NEGLIGENCE - duty of care - causation - contributory negligence - where negligence was apportioned by trial judge between the first and second defendants and plaintiff - appeal against the apportionment of responsibility

Default on mortgage - Special disadvantage - Whether a volunteer - Surety - Express notice - Unconscionability - Unjust - Bring to account the benefit

CRIMINAL LAW: Sentence - manslaughter - unlawful and dangerous act.

VENDOR and PURCHASER - Notice to Complete time of the essence and Termination - V and P acting for selves wihtout solicitors - V sent home - made Notice to Complete after repeated failures by P to meet informally agreed completion dates - Notice held to be sufficiently clear in circumstances - issue of fact about alleged further oral agreement to extend time decided in favour of V - found there was no further oral agreement - Specific Performance claim by P refused.