Cases and authorities

Evidence - Expert evidence given by accountant - Technical terms - Whether use of words in accounting context have accepted technical meaning - Evidence Act S.80 - Whether accountant qualified as having specialised knowledge so as to express opinion on meaning of words used in contract - Relevance

Liquor Law - transfer - objections and grounds for grant or refusal - "primary purpose" - Liquor law - transfer - objections and grounds for grant or refusal - discretion to grant notwithstanding objection made good - Liquor law - licensing tribunals generally - reviews, appeals and cases stated - New South Wales - Standing of Director of Liquor and Gaming.

[ARBITRATION] - Application pursuant to s 38 (4)(b) of the Commercial Arbitration Act 1984 (NSW) for leave to appeal from an Award made by an Arbitrator - [CONTRACTS] - construction - payment due to plaintiff in circumstances contemplated by the contract - whether the condition "unless ... all of those played in Sydney are not played at the Stadium" is ambiguous.

Possession - whether contract unjust under Contracts Review Act - whether transaction should be set aside for unconscionability - no question of principle

FAMILY LAW AND CHILD WELFARE [160], [161] - Child welfare other than under Family Law Act 1975 (Cth) - Children in care of State - Care and protection applications - Orders for psychiatric examination and assessment in assistance of Children's Court proceedings - Appointment of private child psychiatrist rather than Children's Court Clinic.

CRIMINAL LAW - Crown appeal against sentence - respondent convicted of a contravention of s 233B(1)(ca) of the Customs Act 1901 - respondent sentenced to 10 years imprisonment with a non-parole period of 7 1/2 years - whether judge erred in the exercise of sentencing discretion - whether respondent was wrongly sentenced separately for offences under Proceeds of Crime Act 1987 s 82(1) instead of the offences being taken into account when sentencing for offences under the Customs Act s 233B(1)(ca), s 235(2)(c)(i), s 235(2)(ii)(A) - whether sentence manifestly inadequate - whether appellate intervention justified - appeal dismissed.

LOCAL GOVERNMENT - TORT - Negligence - Duties of Councils - Application for building approval - Inspection of foundations - Whether duty to check whether distance from boundary conformed to plans - DAMAGES - Hypothetical circumstances - How damages assessed - Loss from court proceedings which resulted in order for removal of house - Proceedings taken after extension to house, resulting from Council's negligence - Finding by primary judge that proceedings would have been taken in any event - Whether damages should have been awarded for the loss of a chance that proceedings not taken.

Calderbank offer - indemnity costs - reasonable offer

NEGLIGENCE - Breach of duty - Medical practitioner - Duty to warn of possibility of risks involved in proposed operation - Extent of duty - Whether duty discharged. - NEGLIGENCE - Breach of duty - Medical practitioner - General surgeon - Laparoscopic surgery - Standard of care to be observed - Whether standard met. D

Equity - fiduciary duty - no profit rule - acquisition of property in breach of duty - gaming permits - whether full and adequate disclosure of acquisition - remedies - Equity - remedies - equitable compensation - function and application of remedy - causation - loss of opportunity - whether presumption against fiduciaries in breach that they would have sold permits at highest price - function of remedy - whether includes punitive function - no such function - ND

SUCCESSION - Family provision - Claim by adult daughter - Applicant received one quarter of estate - Other daughter received three quarters of estate - Applicant must place before the Court as fully and as frankly as possible details of her financial and material circumstances - Whether applicant has been left without adequate provision for her proper maintenance - Applicant must establish her own case upon its own merits - Conduct disentitling - Statement by testator explaining reasons for her testamentary provisions - Competing claim of other beneficiary

Taxes and duties - customs and excise - importation of goods - meaning of "import". - Taxes and duties - customs and excise - importation of goods - meaning of "import" - offences - intention.

PROCEDURE - application by defendants to re-open and amend after hearing concluded

Corporations Law. Application to set aside statutory demand undr s 459G of the Corporations Act. Whether dispute raised in an affidavit filed out of time is available. Held that it is not. Demand varied.

WILL- Ownership of personalty- Husband and wife- Resulting trust- Intention negativing presumption of advancement- Equity's preference for tenancy in common over joint tenancy- Court's power to direct division or sale of chattels owned in common under s 36A of the Conveyancing Act- Whether statement in will was evidence of facts.

Criminal law - sentence - appeal - drug offence - offence of attempt to obtain possession of prohibited imports - co-offenders charged with importation - respective roles - necessity for sentence to relate to offence charged rather than more culpable offence - necessity for proper finding and evidentiary support to define more culpable role - parity - principles in Regina v. De Simoni and Regina v. Olbrich considered.

Criminal law - sentence - appeal - disparity - different regimes - applicant adult - co-offender child - open to court to intervene - circumstances favouring applicant - appeal should be upheld and new sentences passed requiring a parole release order, but parole to be supervised.

BANKING - TRAVELLERS' CHEQUES - LOSS OR THEFT - PURCHASE AGREEMENT PROVIDING FOR REFUND OF CHEQUES LOST OR STOLEN - CONDITION OF REFUND THAT PURCHASER HAD SAFEGUARDED CHEQUES AS THE PURCHASER WOULD A SIMILAR AMOUNT OF HER OWN CASH - WHETHER PURCHASER BREACHED THAT CONDITION

FAMILY LAW AND CHILD WELFARE [160], [161] - Child welfare other than under Family Law Act 1975 (Cth) - Children in care of State - Care and protection applications - Orders by Children's Court for psychiatric examination and assessment - Children's Court Clinic not appointed to carry out examination and assessment - Whether orders within power - Whether Supreme Court can make orders.

PROCEDURE - costs - jurisdiction to order that costs be payable forthwith - relevant factors considered

REAL PROPERTY - caveats - caveat to protect alleged equitable interest based on financial contributions - whether plaintiff has arguable case on the evidence - application to amend caveat - whether Court has power

Appellant convicted of 11 counts of dishonestly obtaining by deception cheques totalling $69,380 (s.178BA Crimes Act 1900(NSW)) - An essential element of offences charged was an alleged representation that the money was for an investment in shares - Trial Judge directed the jury to entirely dismiss from their minds any thoughts of the money changing hands as a result of a loan - Whether the jury should have been able to consider a loan as a possible rational alternative hypothesis.

Subpoenas - abuse of process - subpoena a substitute for discovery. - Subpoenas - forensic purpose - duty of party procuring issue of subpoena to justify purpose. - Subpoenas - forensic purpose - duty of party procuring issue of subpoena to justify purpose - when objection may be taken.

CORPORATIONS - unregistered managed investment scheme - order for winding up - need for orders to define framework for winding up

PRACTICE AND PROCEDURE - compulsory mediation - family dispute - defendants opposed mediation - plaintiff in poor health - evidence that some negotiations were held, but evidence of content of negotiations excluded - whether mediation should be ordered under s 110K

CORPORATIONS - winding up - statutory demand based on order of Fair Trading Tribunal for payment of money - whether such order gives rise to "debt".

Sentencing - Relevance of sentences passed on juvenile co-offenders

CORONER: inquest into death by shooting - plaintiff a suspect - granted leave to appear - whether entitled to all relevant material at early stage of inquest - when question of referral to DPP under S 19 arises

Criminal law - sentence - manslaughter - plea of guilty in discharge of indictment charging murder - further offence of assault occasioning actual bodily harm - matters to be taken into account although not charged - plea accepted in recognition otherwise conviction may not have been obtained - plea at earliest opportunity - liability as accessory before the fact to unlawful and dangerous act - not present when gravity of co-offenders' assault exceeded expectations - contrition - most serious case.

Criminal Law - Sentence - Manslaughter - Substantial Impairment - Attempted murder - Reduced culpability - Appropriate punishment non-custodial - Bond

PROCEDURE [115] - Supreme Court procedure - Practice under Supreme Court Rules - Master's inquiries - May be ordered at any time - Order for further consideration by Court.

ESTOPPEL [27] - Estoppel by deed - In general - Whether acknowledgment of receipt of advance operates as estoppel where advance not made.

Practice and Procedure - Costs - indemnity costs - relevant factors - importance of anticipated length and costs of proceedings - weakness of case against successful parties - tenuous basis for joinder of parties in cross-claims - Claderbank offers - unreasonableness of offerors' conduct - unrealistic assessment by offeree of its liability to plaintiffs - unrealistic assessment by offeree of plaintiffs' likely recovery of damages - whether offeree sufficiently informed at time of offer to make assessment as to quantum to offer if compromise - unsuccessful defendant an unreasonable obstacle to settlement - whether in conformity with Pt 22 - whether admissible as without prejudice offer in accordance with s131 of Evidence Act 1995 - Bullock Orders - conduct of unsuccessful defendants in inducing maintenance of proceedings by plaintiffs - conduct of unsuccessful defendant in inducing cross-claims by other defendants through initiating cross-claim

CRIMINAL LAW - appeal against conviction and sentence - whether trial conducted according to law - whether interventions by trial judge caused trial to become inquisitorial - whether by reason of the judge's interventions the appellant was denied a fair trial leading to a miscarriage of justice - principles.

Appeal - Application for leave to appeal against sentence - Assault occasioning actual bodily harm - Good character - Failure to give adequate weight - Effects of alcohol and psychological disorders - Contrition

CRIMINAL LAW - dangerous driving occasioning death - dangerous driving occasioning grievous bodily harm - appeal against inadequacy of sentence - juvenile - whether erroneous assessment of the objective seriousness of the offences - whether suspended sentence correctly imposed - abandonment of responsibility - weight to be given to subjective circumstances of offender - DISCRETION - delay in serving of Notice of Appeal - double jeopardy - D

Crown appeal against sentence imposed for guilty plea under s 25(2) of the Drug Misuse and Trafficking Act for supply of not less than the commercial quantity (700g) of heroin - Form 1 offence for supply of not less than the commercial quantity (700g) of heroin.

WORKERS COMPENSATION - liability for nursing services - whether services were a "cost" to the worker - worker mentally incapacitated - how obligation to pay arises - whether implied contract or quasi-contract or restitutionary obligation - worker the daughter of the provider of services - rebuttable presumption that services rendered without charge - presumption rebutted - interest on services where cost not paid - Workers Compensation Act 1987 s 60(1) and s 61(8), sub-clause 1(a) Schedule 6 Pt 11. D

ORDERS ON COSTS - restitution of money paid under judgment - unjust enrichment - rate of interest - applicability of Schedule J rates. ND

Corporations Law. Application to set aside demand under the Corporations Act. Demand reduced due to a genuine dispute in respect of a small part of the amount claimed. Offsetting claims not quantified and therefore not available. No matter of principle.

CONTRACTS - terms discussed at meetings between parties - whether agreement reached on terms - whether additional terms required - whether necessary consensus to form binding contract without formalization - MISLEADING AND DECEPTIVE CONDUCT AND ESTOPPEL - whether representations if made and if relied upon resulted in damage to person to whom made - whether letter of commitment created obligation to enter agreement for lease - whether obligations under agreement arose from representations - FIDUCIARIES - contracts between individual doctors and company providing services including premises to these doctors - contractual provision requiring doctors to act in utmost good faith towards manager - whether fiduciary relationship established - PASSING OFF - name and telephone number associated with the centre - whether centre manager had property in the name as goodwill of business - doctors at centre continuing to use name after management agreements ended - whether centre manager had established any reputation for the business in that name - no evidence of reputation - EQUITY - REMEDIES - PASSING OFF - no claim for injunction - whether account of profits available if no injunction sought

WILLS -testamentary capacity - series of wills - no actions of solicitor to determine capacity - testatrix commencing to suffer dementia and abuse of alcohol from 1989 - whether suffient understanding of effect of will - change in proportions of the distribution of the estate

MENTAL HEALTH - protected persons - managers - transfer of management of estate from Protective Commissioner to trustee company - matters for consideration - complaints about general administration - no breach of duty - concerns about investment of estate - competing claims of Protective Commissioner and trustee company - concern at level of fees charged against estate

Summary judgment - Appeal Local Court

Criminal law - Appeal - Leave to appeal against sentence - Causing grievous bodily harm with intent to murder - Offence objectively serious - Circumstances serious - Error in sentencing - Character disregarded as mitigating factor - Sentence imposed not excessive - Sentence imposed appropriate

Appeal - Application for leave to appeal against sentence - Robbery whilst armed with an offensive weapon - Guideline judgment - applicability - Antecedent criminal history - Statistics

Criminal law - Appeal - Leave to appeal - Extension of time - Attempted robbery with offensive weapon - Error in sentencing - Sentence imposed for wrong offence - Application of guideline judgment for different offence - Enlargement of term of sentence for purposes of extended parole - Drug addiction - Rehabilitation - Special circumsances

No question of principle

Sentencing - No question of principle - adjustment of non-parole period