Cases and authorities

DAMAGES - construction of lease - covenant to use best endeavours - apportionment - expert evidence

CORPORATIONS - voluntary administration - board resolution to appoint administrator passed by sole director of company required to have minimum of three directors - whether company having too few directors contravenes Corporations Act - validating order made

Arbitration. Power of arbitrator to grant an injunction. Proper construction of the submission. Application for stay under s 53 of the Commercial Arbitration Act. Stay granted.

Appeal from Costs Assessor - should Costs Assessor proceed with assessment of costs where there is no liability to pay those costs - liability to pay barrister's fees and costs agreements.

CORPORATIONS - alleged breach of statutory duty by director by making representations - whether recipient of representations is party to any such breach - declaration of contravention sought under s.1317E - ASIC is only competent applicant for such declaration - claims against recipient struck out

Murder - Manslaughter - Malicious wounding - Affray - Youthful offenders - Immigrants - Youthful victims - Rival gangs - Incorrect identification of victims - Vengeance - Brutal group attack - Knife used - Stabbing - Wounds to heart and lung - Deliberate act - No actual intention to kill - Intention to inflict grievous bodily harm - Drug habits of prisoners - Sentence statistics - Remorse - Contrition - Totality

PRACTICE & PROCEDURE - motor accident - failure to obtain exemption certificate or assessment certificate before commencing proceedings - failure to co-operate with other party - commencing of proceedings prohibited.

Proceedings for contempt - Pt 55 of the Supreme Court Rules - real estate agent disqualified from holding licence for 5 years - order subsequently made in Supreme Court upon his undertaking (i) not to represent himself as or engage in activities as a real estate agent and (ii) not to manage a corporation carrying on business as an estate agent - offender breached orders by establishing new real estate business - pleaded guilty at an early stage - gambling problems - no prior convictions - deliberate and calculated acts of defiance of court orders - custodial sentence required - finding of "special circumstances".

EVIDENCE - expert opinion evidence - general principles regarding assumptions and inferences of fact by expert - whether expert's report should be rejected under s 135 of the Evidence Act when its tender in evidence will substantially add to the length of the hearing

Sentence appeals - possession of precursor - error in failing to give discount for utilitarian value of plea - sentencing after Cameron v The Queen and before R v Sharma - discount given for plea of guilty nonetheless as much as could properly have been expected - sentences not excessive - no other sentence warranted in law - appeals dismissed.

Verdict of guilty of manslaughter unreasonable and not supported by the evidence.

Negligence - motor accident - motorbike indicating right turn - police car attending emergency - passing on right - police car negligent in not seeing indication of turn - motorbike negligent in misjudging approach of police car - apportionment equal - no question of principle. ND

LOCAL GOVERNMENT - Town Planning - whether existing use - distinction between the use of the premises and the physical attributes of the premises discussed - ambit of Council's approval discussed - whether use continuous - maxim omnia praesumuntur rite esse acta applied - presumption of continuance applied. D

Appeal against orders made pursuant to the slip rule, in substitution for orders previously made.

Section 151B(1)(b) Workers' Compensation Act 1987 - apportionment of contributory negligence - appeal allowed.

CORPORATIONS - winding up - application by contingent or prospective creditor for leave to apply for winding up in insolvency - amount subject to prospective or contingent claim tendered and paid into court - discretionary considerations against grant of leave

FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infant - Orders for detention and medical treatment of infant using reasonable force if necessary.

CRIMINAL LAW: Sentence - detaining for advantage and concealing serious offence - offender a juvenile at the time.

Remarks on sentence

Partnership - Claim by former partner for interest - Circumstances attracting that entitlement - Period in respect of which interest should be calculated - Claim is a statutory entitlement, not a discretionary remedy - Not necessary that the entirety of the partnership assets should be used by the former partner who continues to carry on business.

Subpoena - Objection to production - Procedure - Costs - Costs of time spent in argument on subpoena - Power of Court to award costs against party objecting to production - Inherent jurisdiction

CRIMINAL APPEAL - Drug Misues & Trafficking Act 1985, ss24(2), 25(1), 25(2) - supply and manufacture of methylamphetamine - application to change pleas of guilty to not guilty - 'step in the process of manufacture' - R v BD [2001] NSWCCA 184 considered - impossibility of manufacture - APPEAL AGAINST SEVERITY OF SENTENCE - error in applying Pearce v The Queen [1998] 194 CLR 610 conceeded - totality of sentences - sentences to be partially cumulative

EVIDENCE - Opinion evidence - Expert evidence - Duty of expert in giving opinion evidence - NEGLIGENCE - Occupier's liability - Dangerous premises - What is unusual danger - Knowledge of by occupier - Slippery surface - Tiles alleged to have been slippery when wet D

Motor accidents - Motor Accidents Compensation Act 1999 ss 131, 131, 133, 134 - - Statutes - construction - reading in of words - conditions for - whether necessary - D

PRACTICE AND PROCEDURE - District Court Rules - application for removal of a defendant from District Court proceedings as not a party to agreement that is the basis of the dispute - CONTRACT - construction and interpretation of contract - principal and agent - CONTRACT - construction and interpretation - ambiguity - admission of extrinsic evidence - parole evidence rule - CORPORATIONS - contracts - agency - joint and several liability

RESTITUTION - money had and received - failure of consideration - subrogation - unjust enrichment - whether the plaintiff/consumer can recover a component of purchase price paid to the retailer, which relates to an invalid licence fee paid by the retailer to the wholesaler where the amount of the licence fee is not specified - TRUSTS - whether the money relating to the licence fee should be subject to a constructive trust in favour of consumer - CONSUMER PROTECTION - trade practices - unconscionability - whether the retention of the money refunded by the wholesaler to the retailer is unconscionable - extent of relief available under s87 of Trade Practices Act 1975 (Cth) - PRACTICE AND PROCEDURE - representative action - difficulties in establishing membership of class of plaintiffs and defendants - whether should proceed as a representative action - PRACTICE AND PROCEDURE - whether causes of action or any of them could be made out, whether proceedings should be dismissed

Criminal Law - murder - whether accused guilty - defence of mental illness

Appeal from the Local Court on a question of law - no question of principle

EQUITY - Fiduciary obligations - Implied term of contract for good faith and fair dealing - Fiduciary duty of good faith and fidelity - Relevant principles - Secret commissions or profits - No need to establish loss - Election of account of profits - Property acquired held in trust - EMPLOYMENT LAW - The contract of service and rights, duties and liabilities as between employer and employee - Summary dismissal - No right to relocation expense reimbursement on proper construction of contract

Family Provision Act - son - large Estate - estrangement - no evidence of need - conduct.

Resulting trust - contribution by both parties - property in the name of one party - advancement - nature of relationship - credit - conflicting evidence - equitable charge

Criminal law - appeal - robbery - identification - application to withdraw evidence - unfair prejudice - appropriate identification directions - point not taken at trial - Rule 4 - exculpatory statements in ERISP - whether appropriate jury be directed on relevance of absence of cross-examination - accused not giving evidence - appropriate direction - Rule 4 - inapplicability of earlier decisions after High Court decision in Azzopardi & Davis v. The Queen.

CRIMINAL LAW: Application for leave to appeal against sentence - perjury - whether sentence manifestly excessive.

CRIMINAL LAW: Application for leave to appeal against sentence - accessory after the fact to murder - error by primary judge in particularising the offence - re-sentence - account taken of subsequent assistance to authorities.

CRIMINAL LAW - application for leave to appeal against sentence - supplying heroin - special circumstances.

Personal injury - Trip on crack in pathway - Evidence - Sufficient probative value - Contributory negligence - Arguable error below monetary limit so as not to attract a grant of leave

Criminal law: application for leave to appeal against sentence - home invasion offences - no question of principle.

Purpose of the Act - divesting assets by gift - - maintenance of lavish lifestyle - spouses assets to be considered - absence of evidence supporting plaintiff's needs - long estrangement from deceased - - moral right.

Family Provision. Applications by the widow and the de facto partner of deceased. Small legacy to the widow and the claim of the de facto partner dismissed. - Succession. Construction of bequest containing an expression of purpose. Whether bequest entitles the beneficiaries to call for a transfer of a legal life estate.

Practice and Procedure - Application for leave to amend

CRIMINAL LAW - rescue of prisoner, hijack, detain for advantage - appeal against conviction - whether jury influenced by pre-trial media coverage - whether sufficient evidence for reasonable conviction - whether certain evidence correctly admitted - whether directions to jury adequate - CRIMINAL LAW - possession of firearms - appeal against conviction - whether co-offender required to testify - where issue was exclusive possession by co-offender - whether trial judge removed questions of fact from jury's consideration - CRIMINAL LAW - appeal against sentence - whether offender doubly punished - where use of force was element of two offences - whether parity with co-offender - comparison where co-offender sentenced for additional offences.

CRIMINAL LAW - Sentencing - Guideline judgments - Dangerous driving occasioning death or grievous bodily harm - Crimes Act 1900, s52A.

UNLAWFUL DISCRIMINATION - police officers - statutory liability - whether Commissioner of Police or Police Service of New South Wales is liable for discriminatory acts of police officers - whether police officer is an employee of the Commissioner of Police - employee - Anti-Discrimination Act 1977, s 53 - JURISDICTION - whether determination of vicarious liability within jurisdiction of the Administrative Decisions Tribunal - TORT - whether unlawful discrimination pursuant to Anti-Discrimination Act 1977 is a tort - definition of tort.

Evidence - Expert Evidence

Appeal against conviction - After guilty plea - Principles applicable - No factual basis

CORPORATIONS - voluntary administration - application for letter of request to English court - whether "external administration matter" - whether "insolvency" - whether approrpriate to seek orders of English Court issuing general and undirected commands

CORPORATIONS - deed of company arrangement - proof of debt against company in administration - proof lodged for voting purposes relied on for purposes of distribution - whether deed can limit statutory right of appeal under s 1321 - considerations relevant to extension of time for appeal under Corporations Rule 14.1 - late submission of proof of debt - whether new proof of debt may be lodged which repeats claim made in a rejected proof - whether varied proof should be treated as a fresh proof - what constitutes rejection of a proof of debt - entitlement of proving creditor to participate in distribution

Costs - Jurisdiction - Interest on costs

Practice and Procedure - Application to strike out pleading - Issue estoppel in other proceedings - Whether the present claim is subject to that issue estoppel - Nature of former relationship between parties - Whether a partnership - Form of defence and cross-claim - Whether defective as being prolix or embarrasing - Nature of relief sought - Whether damages are available in addition to equitable compensation - Exemplary damages available as equitable relief.

Costs - Jurisdiction - Interest on costs