Cases and authorities

PARTNERSHIP [35] - Dissolution and winding up - By the Court - Other matters - Costs - General rule - Where proceedings necessary to obtain ruling on disputed issue of fact - Existence of partnership disputed.

Application that proceedings be heard together - no question of principle

On application by plaintiff to rely on two further imputations - post 7A trial

CRIMINAL LAW - appeal against severity of sentence - armed robbery - Form 1 - being carried in conveyance without consent - eligibility for Drug Court Programme - appeal dismissed - error in lower court judgment rectified.

Sentence appeal application - attempt cause child under 14 to participate in prostitution - serious efforts to carry through attempt - impossibility of success in attempt - no lesser sentence possible.

Criminal Law - appeal against sentence - plea of guilty - detian person with intent to hold him for advantage - aggravated robbery in company on Form 1 - appeal allowed.

Criminal Law - application for leave to appeal against an interlocutory order - trial judge refused an application for a permanent stay - whether necessary for prosecution to believe accused guilty of offence charged where legislation deems offence on a lesser proof - no other question of principle

personal injury - brain injury - workers compensation - damages - contribution - negligence - inadequate reasons - whether disabilities exaggerated - whether evidence reliable - voluntary assumption of risk

NEGLIGENCE - patrons contracted hepatitis A virus after eating prawns at restaurant - causation - contaminated - whether the prawns were adequately cooked - failure to warn - duty of care - foreseeability - - TRADE PRACTICES - SALE OF GOODS - fitness for purpose - merchantability - whether appellant entitled to be indemnified by the wholesaler - breach of contract - whether prawns were of merchantable quality and not fit for the purpose for which they were required - D

ADMINISTRATIVE LAW - LOCAL GOVERNMENT - Application for development approval - whether Urban Design Guidelines were valid - whether amounted to erroneous construction of Local Environment Plan and Development Control Plan - ADMINISTRATIVE LAW - LOCAL GOVERNMENT - Application for development approval - challenge to Council approval - whether irrelevant consideration taken into account - where Council had made Urban Design Guidelines.

Legal Practitioners - Position of Director of Public Prosecutions - Whether advice given to Attorney-General was "in connection with the practice of law" - Whether complaint to Legal Services Commissioner was properly dismissed - Questions arising under ss127 and 155 of the Legal Profession Act 1987

CORPORATIONS - winding up - creditors with very small claims - whether liquidator has same discretion as trustee in bankruptcy not to pay dividend less than $25 - whether such bankruptcy provision is a rule "with regard to debts provable" in insolvent winding up - voluntary winding up in consequence of voluntary administration - whether jurisdiction under Corporations Act s.447A available to modify various creditor notification requirements - whether court should dispense with such notification requirements

COSTS - application for security of costs - where litigation of plaintiff's case was funded by another company - whether plaintiff will be prejudiced if an order is made

CORPORATIONS - voluntary administration - transfer of shares in company in administration void unless court otherwise orders - whether such order should be made

Obstruction of justice. - Lawful Directions to Police Offiers

CRIMINAL PRACTICE & PROCEDURE - Application for Determination of Life Sentence - Change in penalty - Whether Court obliged to give benefit of change - Is the redetermination a new sentence?

judgement-reasons to be given

COMMERCIAL - application for stay of proceedings - where defendant's joint venture partners are South African companies - whether the NSW Supreme Court is a clearly inappropriate forum

[CONTRACTS] - Sale of land - Defendant produced an up to date s 149 Certificate one week after contracts were exchanged - Plaintiffs purported to rescind contract - Whether defendant failed to disclose a matter affecting the land - Whether plaintiffs unaware of matter affecting land at the time of the contract - Whether plaintiffs would have entered into contract had they known of the matter - Whether contract validly rescinded - Whether plaintiff entitled to return of deposit.

PROCEDURE - Costs - Costs on indemnity basis - Re-hearing of action referred to arbitrator - Defendant successful before arbitrator - Evidence not called by defendant before arbitration, but called in District Court - Whether occasion for indemnity costs. - TORT - Negligence - Employee of club slips on floor in area of club used by a caterer - Failure to clean floor - Whether caterer liable - Whether club entitled to contractual indemnity.

Associations & Clubs - jurisdiction of the courts - provision in Rules for internal appeals - bar to proceedings in court until domestic rights of appeal exhausted - stay of court proceedings

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - interested witness - appropriate costs order - PROCEDURE - costs - probate suit - gift to interested witness

EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - Source of knowledge asserted fact - Representations in contemplation of or in connection with proceedings.

CORPORATIONS - winding up - liquidator - approval required to enter into agreement of greater than three months duration - agreement entered into before approval but with substantive operation suspended until approval given

CRIMINAL LAW - appeal against severity of sentence - Robbery while armed with a dangerous weapon - Form 1 offences - break enter and steal - steal motor vehicle - possession of cannabis leaf - appeal allowed.

Sentence appeal - dangerous driving occasioning greivous bodily harm - deliberate and grave conduct - no automatic full discount.

Action on foreign judgment - defendant aware of foreign trial in which he was successful but not aware of appeal reversing the result - application for summary judgment in action on foreign judgment - question of defendant submitting to jurisdiction of appellate court - question of natural justice in relation to appellate proceedings - whether arguable case on either question - whether defendant set up "mode of notification" as to appellate proceedings such that notice to former foreign lawyers satisfied requirements of natural justice - whether foreign procedure established whereby notice to foreign lawyers was sufficient - held arguable case that did not receive natural justice - summary judgment not available. D

PROCEDURE - Supreme Court procedure - Duty Judge lists - counsels' time estimates - MORTGAGES - receivers - application for interlocutory injunction to restrain receivers from acting - factors relevant to balance of convenience

SUCCESSION - probate - claim for summary dismissal - claim for probate by 2 of 3 executors seeking that the defendant executor be passed over on the grounds of pleaded unconscionable conduct towards deceased - whether defendant not competent to take a grant - whether inherent power to refuse grant could be exercised

SUCCESSION - family provision - eligible person - same sex relationship - whether the deceased was in a de facto relationship with the plaintiff at the time of death

TRUSTS AND TRUSTEES - existence of express trust - legal tests for recognising existence of express trust - examination of facts concerning whether express trust established - TRUSTS AND TRUSTEES - resulting trust through payment of purchase price - tests for existence of resulting trust through payment of purchase price - juristic nature of resulting trust through payment of purchase price - EQUITY - general principles and maxims of equity - unclean hands - circumstances in which equitable relief denied because of unclean hands - EVIDENCE - evidence of convictions

WILL - CONSTRUCTION - NO QUESTION OF PRINCIPLE

Corporation - winding up. Application under s564 of the Corporations Act by creditor who granted indemnity and provided funds for liquidator to conduct examinations under Part 5.9. - Held: Litigation in the first limb of s564(a) included examinations under Part 5.9. A cause of action is property within the second limb of s564(a) which may be preserved so long as there has been a settlement of the cause of action and the proceeds recovered.

Costs - no question of principle

REAL PROPERTY - easements - grant of easement under section 88K Conveyancing Act 1919 when easement is "reasonably necessary for the effective use or development of land" - other requirements for grant of easement

Criminal Law - driving with prescribed concentration of alcohol - breath test required on driveway of home unit block where the person resided - whether a breath test was required of the person at his "place of abode" - the prosecution having failed on that issue, whether there was a discretion to admit the subsequent breath analysis certificate

COMMERCIAL - INTEREST - where damage has been proved but plaintiff not had to pay for a replacement item - general principles of the discretion to award interest - whether it is just to award interest in the circumstances - COSTS - offer of compromise where claim is later amended - order for costs as between 1D and 2D.

CRIMINAL LAW - appeal against severity of sentence - Supply - methylamphetamine - cannabis - appeal dismissed

Sentence appeal - conviction of threatening reprisal against judicial officer - undue weight to previous record - circumstances of offence not severe.

CRIMINAL LAW - appeal against severity of sentence - assault - robbery in company - whether trial judge made sufficient allowance for pre-sentence custody - accumulation - finding of special circumstances.

LIMITATION OF ACTIONS - EXTENSION OF LIMITATION PERIOD - JUDGE FINDS "NOT INSIGNIFICANT PREJUDICE" TO DEFENDANTS - CONSIDERS PREJUDICE TO PLAINTIFF - ERRORS OF PRINCIPLE - APPEAL ALLOWED - EXTENSIONS REFUSED

CONSTITUTIONAL LAW - Land tax - validity of State land tax over property - where property was previously a Commonwealth place - Commonwealth Constitution, s 52 - STATUTORY INTERPRETATION - Retrospective operation of taxation statute - where land tax Acts made effective by later Regulation - Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6.

Sentence appeal application - concurrent sentences subsume effect of R v Ellis - no lesser sentence appropriate.