Cases and authorities

dependency - member of same household - whether de facto relationship had existed - nature of relationship post de facto relationship - s 32 family Provision Act - admissibility of oral statements made by deceased

Homicide charges "no billed" - pleas of guilty to non-homicide offences at "first reasonable opportunity" - malicious wounding and related offences committed upon a vulnerable victim - application of s 21A of the Crimes (Sentencing Procedure) Act 1999 - lengthy period of time spent in maximum security awaiting disposal of matters - "special circumstances" - need for rehabilitation of alcohol dependent offenders - need for proper relationionship between sentences of persons not strictly co-offenders

PROCEDURE [91]- Service- Initiating process- Whether substituted service may be ordered for overseas defendants- Provisional order made.

CRIMINAL LAW - appeal by case stated - intimidation of a police officer - s 60(1) Crimes Act 1900 - whether established by proof of no more than that acts or words caused the officer to experience fear or apprehension - statutory interpretation - natural meaning of words.

WORKERS COMPENSATION - whether employee injured in the course of employment - whether employee resided on the employer's property because he had been induced or encouraged to do so - when an injury is sustained where and while the worker is living on the employer's premises - whether employment a substantial contributing factor to the injury - whether trial judge adequately applied s 9A, Workers Compensations Act 1987 - whether s 9A satisfied merely because the injury arose out of or in the course of employment. (ND)

Evidence - Expert evidence - Clinical psychologist - Report - Test for admissibility - Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 explained in part - Words and phrases - sure - unfairly prejudicial

Imputations - generalised - aggravated damages - particulars - false imprisonment - pleading - SCR Pt16 r3

WORKERS COMPENSATION - Physical injury - No reference to psychological injury in application - Whether applicant could rely on psychological mechanism of causation of claimed impairments and losses - Whether procedural fairness denied.

CONTRACTS - CONVEYANCING - Vendor and purchaser - Notice to complete - Whether party giving a notice to complete can deny its validity - Whether party giving a notice to complete can unilaterally extend the time limited by the notice - Need for notice making time of the essence to be explicit - Whether vendor's notice to complete waived submission of transfer.

REAL PROPERTY [448]- Strata units- Body corporate- Duties- What may be considered if consent sought by unit holder to development application solely within its lot.

Leave to file cross claim

Appeal against a cross-claim in proceedings where plaintiff sued her solicitor for negligence when advising re possible damages claim and also against the barrister retained to advise.

Family Provision Act (1982) NSW - S6(1)(d) - grandchild - member of deceased's household - continuing relationship throughout adulthood - extent of needs

COSTS - defendants seek costs on an indemnity basis - rejection of an offer of compromise - offer not bettered in litigation - failure to accept offer was unreasonable

Aggravated robbery occasioning grievous bodily harm - escape lawful custody - whether trial judge failed to comply with the provisions of s 57 Crimes (Sentencing Procedure) Act 1999 - Pearce v The King - appeal allowed.

Evidence - Evidence on commission - Foreign court - Letter of Request - Letters Rogatory - International judicial assistance - Examination of witnesses in civil and commercial matters - Evidence by deposition - Participation by foreign attorneys - Discovery against persons not parties to foreign action not permitted - Pre-trial discovery not permitted - Fishing expedition not permitted - Roving commission not permitted - Treaty - Hague Convention - Setting aside subpoena - Setting aside ex parte order - Who is a party - Practice - Discretion

Extension of time - ss 60C & E Limitation Act

CORPORATIONS - Insolvent trading - whether company unable to pay its debts as and when they fell due - Reasonable expectation - Reliance upon information provided.

s69 Local Courts (Civil Claims) Act - Total failure of consideration - Part payment conditional on performance of contract

Succession - Family Provision - Claim by de facto widow - Matrimonial home was originally owned by testator - Then transferred into joint tenancy between testator and Plaintiff - Severance of joint tenancy - Property held by testator and Plaintiff as tenants in common in equal shares - By will testator gave to Plaintiff right of residence for life in his one half share in house property - Testator was survived by three adult children (one mentally and physically disabled) - Residue of estate to be held on three separate and differing trusts for the three children - Whether the Plaintiff has been left without adequate provision for her proper maintenance - Effect of right of residence for life in one half of house property, where Plaintiff owns other half - Undesirable that there be any continuing relationship between Plaintiff and children of testator, in consequence of foregoing testamentary provisions - Competing claims of children - One of those children is physically and mentally disabled - Another was a heroin addict who has significant health problems - Financial and material circumstances of children - Size of estate - Amount available for distribution after costs of present proceedings are taken into account

professional negligence - joint meeting of experts prior to hearing of claim for damages

NEW TRIAL - In general and particular grounds- Application to re-open case after publication of reasons but before entry of judgment - Leave to adduce further evidence - Leave to cross-examine witness not - cross-examined at hearing - Failure of successful party to discover documents - Relevant principles

Interrogatories - costs - no question of principle

CONTRACT - dispute between builder and developer of shopping centre over status and content of contracts - whether additional work done by the builder was a legitimate 'variation' - ESTOPPEL - parties adhered to unexecuted contract - whether contract governed parties' relationship - AGENCY - parties to contract - TRADE PRACTICES - misleading and deceptive conduct - misrepresentation as to future matter - contractual promises as representations - intention or capacity to perform - conditional promises - complex contractual relations.

Criminal law - sentence - armed robbery with offensive weapon - appropriate discount for plea - appropriate allowance for voluntary custodial rehabilitation programme - error in failing to follow principles in Thomson & Houlton - applicant re-sentenced.

Criminal law - appeal - sentence - multiple offences - breaches of recognizences - effect of prior offences - necessity for deterrence - sentence not manifestly excessive.

Application for leave to appeal against sentence - no question of principle

Criminal Law - application for leave to appeal against sentence

Criminal Law - application for leave to appeal against sentence - no question of principle

LOCAL GOVERNMENT - Step in footpath - Risk to pedestrians - Council's liability - TORT - Negligence - Expert evidence as to causation of subsidence to footpath - Whether appealable error by primary judge.

Arbitration and awards - Arbitrator - Removal of Arbitrator - Unsuitability - Availability dates - Whether ground for removal as 'unsuitable' - Proper construction of S.44 Commercial Arbitration Act 1984 (NSW)

CRIMINAL LAW: charges of sexual assault - verdicts of guilty on some counts, not guilty on others - whether verdicts of guilty unreasonable.

Section 20 Property (Relationships) Act 1984 - de-facto relationship - whether the findings reflected the orders made by the trial judge - appeal allowed.

Whether the deceased was entitled to an award under the Workers' Compensation Act - whether the deceased could be classified as an employee or volunteer - whether the trial judge's discretion miscarried for not allowing the case to be re-opened - appeal dismissed with costs.

Professional negligence - appeal against damages flowing from negligence - appeal allowed.

CONVEYANCING - position after completion - conveyance by wife to husband - no explanation offered - proximity to imposition of liability upon wife - intention to defraud creditiors - order avoiding alienation of property - JUDGMENTS AND ORDERS - alienation of property pursuant to Family Law Act order - whether order avoiding alienation conflicts with Family Law Act - whether Family Law Act order prevents making of order avoiding alienation order

Courts - Practice and procedure - Children's Court - Duty of Children's Court to give reasons - Discretion - Court expert - Authorised Clinician - Oral evidence - Declaration - Order in the nature of mandamus - Costs

Contracts- construction- no question of principle. - Estoppel- construction of contract- not available

Criminal law - appeal - sentencing for multiple sexual offences against young children - principles in Regina v. Pearce - discount for volunteering confession - Regina v. Ellis - grounds asserting error in failing to give discount and sentence manifestly excessive - neither ground made out considering s.6(3) of the Criminal Appeal Act.

appeals against conviction - possession of not less than commercial quantity of prohibited imports - evidence of intercepted telephone calls to which appellants were not party - admissibility of statements made by participants to joint criminal enterprise against other alleged participants - reasonable evidence of pre-concert - prejudicial value of evidence vis-a-vis probative value - not tendency evidence - verdicts not unsafe and unsatisfactory - conversations in furtherance of conspiracy - application for leave to appeal against sentence - error in finding judgment verdict entailed knowledge of actual quantity of drugs - nevertheless no error in sentencing process

Criminal Law - application for leave to appeal against sentence

Criminal law - appeal against convictions for murder and malicious wounding - probative value of witnesses' statements to police following leave to cross-examine by prosecutor as unfavourable witnesses - whether convictions unreasonable or unable to be supported having regard to the evidence - whether there should be a new trial.

Criminal law - appeal - sentence - multiple robberies - young offender - prospects of rehabilitation - necessity for custodial sentence - relevance of sentence of co-accused for these and other crimes - application of s.6(3) Criminal Appeal Act 1912.

Criminal Law - application for leave to appeal against sentence - no question of principle

CONTRACTS - General contractual principles - Construction and Interpretation of Contracts - No contractual right of set-off - Running account - CORPORATIONS - Winding up - Statutory right of set-off - Principles of set-off in bankruptcy - Rights to credits of sales tax - Prospective rights to refunds of customs duty - Whether set-off can be waived or abandoned - Corporations Law (Cth) s 553C

The defendant (a trading corporation) selling land at Crackenback Ridge, Thredbo to plaintiffs - dispute over size of certain blocks - Breach of covenant.