Cases and authorities

REAL PROPERTY - co-ownership - partition - statutory trusts for sale or partition - orders for adjustment of entitlements to proceeds of sale - whether one co-owner's claim for damages for breach of contract by the other co-owner should be made deductible from proceeds of sale

Family Provision. Application by two persons who were part of the household of the deceased. Small legacies given. No matter of principle.

REAL PROPERTY - mortgages - mortgagee's exercise of power of sale - whether exercised in breach of duty - adequacy of advertising - adequacy of valuation - whether sale should have been by public auction - whether sold at gross under-value - whether defendant failed to have regard to subdivision approval and in principle building approval

PRACTICE and PROCEDURE - interlocutory motions - restraint of repeated interlocutory motions - the defendant was restrained from making further interlocutory motions without leave of a Judge.

PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Effect of entering or recording judgment or order - General rule.

Murder - Sentencing Principles - youth - no special circumstances

Application for Discovery of Documents - whether documents necessary to be produced for the purpose of the proceedings - no question of principle

PROCEDURE [671] - Costs - Security for costs - Practice matters - Order for security to be given by guarantee of controller of plaintiff and his wife - Whether charge over real estate to support orders for security should be required.

Professional negligence - interrogatories

Corporations - directors' duties - duty of care and diligence - Corporations Law s 232(4) - share subscription - business proposal - proposal dependent upon grant of lease by council - grant of lease conditional upon certain subscribed capital - amount of subscribed capital misrepresented to council - whether finding of misrepresentation against appellant at trial erroneous - liability - causation - assuming liability, whether money liability should be increased by way of interest - ND

Estoppel by representation - distinct from equitable estoppel - whether open to decide case on grounds of estoppel by representation - whether by provision of sewerage connection plan there was a representation as to boundaries of land - whether estoppel from asserting an encroachment. D.

CORPORATIONS - Disqualification order from managing a corporation - Relevant principles and factors - Contrition - Impossibility of order limited to public companies - disqualified person can later apply for permission on a restricted or conditional basis - Compensation order - Relevant principles - Difficulty of differentiation between Defendants - Pecuniary penalty order - Relevant principles and factors - Totality principle - Relevance of multiple contraventions - Exoneration - Appearance of honesty - Relationship between civil and criminal prosecution.

Equity - Resulting Trust - whether partnership moneys used in purchase of a home unit - whether partners entitled to interest in the property - no question of principle

Summary judgment - standing, breach of contract, deceit

Legal practitioner - Solicitor - Practicing Certificate - Cancellation of Practicing Certificate - Roles of Court and Law Society - Validity of Legal Profession Act 1987 - Validity of Royal Assent by Governor - Validity of s 9A of Constitution Act 1902 (NSW) - Royal Prerogatives in New South Wales - Sign Manual

Local court - general division - Appeal - Delay in service of Statement of Claim - Statement of Claim invalid for service - Motion to revive - Delay - Prejudice to defendants - No error of law disclosed

Criminal law - prohibited drug - heroin - supply - Drug Misuse and Trafficking Act 1985 NSW ss 25(1), 29 - Evidence - witnesses - unfavourable witnesses - leave to cross-examine - Evidence Act 1995 (NSW) ss 38, 60, 102, 103, 135, 137, 192 - considerations relevant to exercise of discretion to grant leave - whether grant of leave vitiated by error of law - appropriate time for granting leave - scope of leave - Practice - trials - questioning - Evidence Act 1995 (NSW) ss 38, 192 - granting of leave - manner - scope - effect on nature and outcome of trial

PROCEDURE - District Court - Security for costs - Stay of proceedings - Abuse of process - Whether stay can be ordered unless security provided, in cases outside categories in respect of which security may be ordered.

SECURITY FOR COSTS - application for review of Registrar's orders - whether security for costs should be increased - whether applicants were prejudiced by unnecessary delay on the part of the respondent in applying for additional security - principles - onus of proof - no evidence to support prejudice - application for review dismissed. ND

CONTEMPT OF COURT - whether improper pressure applied to a party to withdraw from proceedings - where threatening letter sent to persons consenting to be joined as plaintiffs - where letter marked 'without prejudice' - whether letter admissible - whether communication between persons 'in dispute' - Evidence Act 1995, s131.

LIMITATION OF ACTIONS - Mortgage - mortgagee took mortgage in 1980, principal repayable in 1985, sued in 2001 for possession and judgment for principal (wholly unpaid) and interest. Defence relied on Limitation Act 1969 ss. 27, 42 and 43. Held that s.42 not s.27 fixed time for recovery of possession, but s.40 governed s.42 where claim for possession was based on Real Property Act s.60. There is no time bar for remedies conferred on mortgagee under Real Property Act, including claim for possession under s.60, but s.42 applies to action for principal and s.43 applies to action for interest. Payments on account of interest commencing about 1993 under arrangements between the parties confirmed the principal so it was not time-barred, and repaid the interest partly due from 1993 on, so no current interest was unpaid, while interest before 1993 was barred.

COMMERCIAL - application for stay of proceedings - contractual clause for resolution of dispute - whether a stay pursuant to s 53 of Commercial Arbitration Act should be granted - whether there will be more than one proceedings in respect of the same claims - contractual claim as well as Trade Practices Act claim - whether a request for documents constitutes a step in the proceedings

Summary judgmenyt - cause of action inchoate

Criminal Practice & Procedure - Sentence - Financial benefit by deception - Murder - Procuring assault - Alternative bases for murder - Contract killing/assault - Parity where other offenders already sentenced

VICTIMS COMPENSATION - Victims Support and Rehabilititation Act 1996, Schedule 1, Table 1, cl 5 (now repealed) - "shock" - whether compensation payable unless both symptoms and disability persist for more than 6 weeks. - STATUTORY INTERPRETATION - "and" - when it means and/or (D)

Medical Tribunal - Appeal - No error of law - Professional Misconduct and Unsatisfactory Professional Conduct

CORPORATIONS - liquidation - application by court-appointed liquidator for directions - where company in liquidation was a partner and custodian - whether liquidator's power of sale extends to partnership property - whether directions in respect of sale of partnership property should be made subject to dissolution of partnership - whether directions should be on condition that the approval of the holder of security over partnership interests should be obtained - whether directions should be qualified to preserve third party rights and interests

Change of venue - Venue previously changed by consent - Delay not satisfactorily explained - Stay - Unpaid costs of another action - Trifling amount - Consent injunction - Liberty to apply - No change of circumstances - Damages sought for a person who is not a party to action.

Family Provision. Claim under Family Provision Act by a son who was left out of deceased's will which gave all his small estate to a niece and a nephews. Order for a legacy. No matter of principle.

TORT - negligence - patron injured in club - injury caused by security officer - whether delegation of duty of care - whether breach of duty of care - foreseeability of injury - whether security officer acting within scope of his authority - CONTRACT - claim for indemnification - whether breach of contract - whether terms of contract clear - EVIDENCE - credibility findings - conflicting statements - D

ND

Damages - Calculation of interest on loss of profits claim - Costs - Stay orders

EVIDENCE - admissibility and relevancy - whether expert evidence not admissible through risk of bias - CORPORATIONS - winding up - setting aside statutory demand - re-writing statutory demand under section 459H Corporations Act 2001 (Cth) - relationship between debt claimed in notice of demand, and re-written notice of demand

BANKRUPTCY - effect of bankruptcy on proceedings - mandatory order entered in favour of plaintiffs before their bankruptcy - whether bankrupts competent to apply subsequently for order for enforcement of Court's previous order - whether Court may direct compliance with previous order on its own motion

CORPORATIONS - takeovers - compulsory acquisition by bidder after achieving 90% acceptance - application by non-accepting shareholder for order preventing compulsory acquisition - PROCEDURE - costs - whether costs should be awarded against shareholder unsuccessfully resisting compulsory acquisition

Appeal against severity of sentence - matter taken into account-need to find error-need to find appropriate sentence

MANSLAUGHTER - S6(1) of Criminal Appeal Act 1912 - s116 Criminal Procedure Act 1986 - statements read to jury - warning about weight to be given to deposition evidence - dock/court identification - warning about weight to be given to identification - verdict of jury unreasonable - dangerous to allow conviction to stand

knowingly involved in importation of not less that a traffickable quantity of methylamphetamine - plea of guilty - discount on sentence for guilty plea - assistance to authorities - discount for assistance 25% - discount inadequate - any lesser sentence an affront to community standards - non-parole period - ratio of non-parole period to head sentence - ratio ordinarily 60% to 66-2/3% - ratio of 75% requires explanation - ratio not justified - non-parole period reduced

TORT - TRADE PRACTICES - Deceit - Misleading or deceptive conduct - Representation of authority to bind company, and of association with company - Company bound through ostensible authority - Company without assets - Representee suffers loss from transaction - Whether representor liable for loss. D

REAL PROPERTY - CROWN LANDS - permissive occupancy - whether transferable - STATUTES - interpretation - provision that "asset" "vests" - whether effectual in relation to permissive occupancy

INTELLECTUAL PROPERTY - other matters - confidential information - order for delivery up for destruction - principles upon which order made - INTELLECTUAL PROPERTY - other matters - confidential information - form of orders

Leave to commence proceedings - s 151D WCA

CORPORATIONS - provisional liquidation - application by provisional liquidator for approval of rescue arrangements and for directions - relevant consideration

CORPORATIONS - provisional liquidation - application by provisional liquidator to approve entry into an agreement the term of which may end more than three months after the agreement is entered into - application for directions with respect to payment of some unsecured creditors - interests of other unsecured creditors sought to be protected by 'letters of comfort' - further information to be provided - desirability of instructing counsel to represent interests of other unsecured creditors

Sentence

Judicial Review - whether Children's Court failed to consider properly an application for leave to apply for rescission or variation of a care order - whether Court's approach unduly technical - whether failure to take account of material circumstances - whether immaterial circumstances taken into account - Appeals - whether District Court has jurisdiction to hear an appeal from a decision of the Children's Court refusing leave to apply for rescission or variation of a care order

Limitation period - Motor Accident Act - Assessment of damages - Loss of a chance - Raising new issues on appeal.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - trusts, equities and unregistered instruments and interests - effect of information, received prior to acquiring interests, that someone else might have an interest in the land - whether personal equity arises from taking benefit of a transaction and consequently being required to bear burden of that transaction - CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - breach of contract - failure of vendor to convey - - time for assessment of damages - whether damages recoverable for loss of rent from property - GUARANTEE AND INDEMNITY - discharge of surety - failure of creditor to protect security - appropriate remedy - EQUITY - remedy for breach of equitable duty - relationship of remedy to rationale for equitable duty - GUARANTEE AND INDEMNITY - discharge of surety - failure to disclose unusual features of transaction - need for failure to disclose to amount to misrepresentation justifying rescission - GUARANTEE AND INDEMNITY - discharge of surety - Garcia v National Australia Bank equity - GUARANTEE AND INDEMNITY - discharge of surety - guarantee procured by undue influence of husband

Negligence - Not established - Verdict for defendants